SOFTWARE AND PRODUCT LICENSE AGREEMENT
PLEASE READ THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE FUSIONIQ PRODUCT (“PRODUCT”). FUSION ANALYTICS SOFTWARE DEVELOPMENT PARTNERS LLC (“FUSIONIQ”) IS WILLING TO LICENSE THE PRODUCT TO YOU AS AN INDIVIDUAL OR LEGAL ENTITY (“CUSTOMER” OR “YOU”), PROVIDED, AND ONLY ON THE CONDITION THAT, YOU ACCEPT AND AGREE TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT APPLIES TO ANY PRODUCT PROVIDED TO YOU BY FUSIONIQ, UNLESS OTHER TERMS SPECIFICALLY COVER THOSE ITEMS.
BY CLICKING “I ACCEPT THIS AGREEMENT” OR OTHERWISE ACCESSING THE PRODUCT OR BY USING THE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THAT THIS ACTION ESTABLISHES A LEGAL, ENFORCEABLE, AND BINDING AGREEMENT BETWEEN YOU AND FUSIONIQ. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, YOU SHALL HAVE NO RIGHT TO USE THE PRODUCT, AND YOU MUST IMMEDIATELY CEASE USING AND ACCESSING THE PRODUCT.
Capitalized terms shall have the meanings set forth in Section 8 (“Definitions”) below.
1. USER SUBSCRIPTIONS AND FEES
1.1. License. Subject to the terms and conditions of this Agreement and the Customer purchasing and paying the User Subscription in accordance with this Agreement, FusionIQ grants and Customer accepts a nonexclusive, nontransferable, non-assignable, and limited right to permit Authorized Users to use the Product during the Subscription Term solely for the Customer's internal business use and solely in accordance with the terms and conditions of this Agreement.
1.2. Fees and Pricing. You agree to pay FusionIQ any fees for the Product you purchase or use in accordance with the pricing and payment terms provided to you for such Product (“Pricing Schedule”). You will be billed using the billing method you select through your account management page or otherwise agreed to in writing with a FusionIQ representative. Fees paid by you are non-refundable, except as required by applicable law.
1.3. Subscriptions. Our Products are billed on a subscription basis. This means that you will be billed in advance on a recurring, periodic basis (each period is called a “Subscription Term”). Subscription Terms are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. You may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
1.4. Taxes. Unless otherwise stated, you are responsible for any taxes (other than our income tax) or duties associated with the sale of the Product, including any related penalties or interest (collectively, “Taxes”). You will pay FusionIQ for the Product without any reduction for Taxes. If FusionIQ is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide FusionIQ with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged.
1.5. Price Changes. FusionIQ may change the fees charged for the Product at any time, provided that, for Product billed on a subscription basis, the change will become effective only at the end of the then-current Subscription Term. FusionIQ will provide you with reasonable prior written notice of any change in fees.
2. SCOPE OF LICENSE
2.1. Software Licensed through Product. Notwithstanding any references to “purchase”, the Software accessed through the Product is licensed and not sold pursuant to this Agreement. This Agreement confers a limited license to the Product only and does not constitute a transfer of title to, or sale of, all or a portion of the Product or the underlying intellectual property. You acknowledge that FusionIQ or third parties own all right, title, and interest in and to the Software and Product and all associated materials and Product, including without limitation, the structure, organization, source code, all copyrights, patents, trade secrets, and other intellectual property rights throughout the world, in and to the original and all copies, portions, extracts, selections, arrangements, adaptations, compilations, and any derivatives of the Software and Product, or software or content provided through or in conjunction with the Software or Product, and all features, updates, releases, enhancements, bug fixes, workarounds, patches, updates, and all associated documentation and product packaging.
2.2. Licensed Content. Product content consists of financial information, data, analytics, scoring, and other information that is owned by FusionIQ or its licensor, and may be provided to Customer through a display on its website, email notifications, and/or downloads (“Content”).
2.3. Customer Use of Product. You may use the Product and Content for your internal use in managing your business, making investment decisions, and otherwise providing your services to your clients. You shall not, except to the extent expressly permitted under this Agreement:
(a)modify, create derivative works from, reproduce, distribute, market, display, transfer, sell, rent, lease, or loan the Content;
(b)make the Content accessible to unauthorized parties or publicly distribute it;
(c)remove, obscure or alter any required notice or any notice of FusionIQ’s or its licensor’s intellectual property rights included as part of the Content;
(d)disassemble, translate, reverse engineer or otherwise decompile the data; or
(e)directly or indirectly impair, dispute or contest the ownership, validity or enforceability FusionIQ’s or its licensor’s intellectual property rights in the Content.
3. FUSIONIQ OBLIGATIONS
3.1. Performance by FusionIQ. FusionIQ undertakes that it has undertaken commercially reasonable efforts to provide Content on a timely and accurate basis. Customer understands that FusionIQ is not responsible for the timeliness or accuracy of general stock and market data provided to it by third parties.
3.2. Not Responsible for Misuse or Modification by Others. FusionIQ is not responsible for any non-conformance which is caused by use of the Product contrary to FusionIQ’s instructions, or modification or alteration of the Product by any party other than FusionIQ or FusionIQ’s duly authorized contractors or agents. If the Product does not conform with the foregoing undertaking, FusionIQ will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
3.3. FusionIQ and Agreements with Third Parties. This Agreement shall not prevent FusionIQ from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or Product which are similar to those provided under this Agreement.
4. CUSTOMER’S OBLIGATIONS AND ACCOUNT MANAGEMENT
4.1. Compliance with Laws. The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement, and ensure that the Authorized Users use the Product in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement.
4.2. Export Control and Embargoes. You may only use the Product if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or under other applicable law from receiving the Product, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Product from FusionIQ.
4.3. Management of Authorized Users. In relation to the Authorized Users, the Customer undertakes that:
(a)the maximum number of Authorized Users that you authorize to access and use the Product and the Documentation shall not exceed the number of User Subscriptions you have purchased from time to time;
(b)you will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Product and/or Documentation;
(c)you shall maintain a written, up to date list of current Authorized Users and provide such list to FusionIQ within five (5) Business Days of FusionIQ’ written request at any time or times;
(d)each Authorized User shall keep a secure password for its use of the Product and Documentation, and that each Authorized User shall keep its password confidential and secure.
4.4. Updating of Contact Information. FusionIQ may occasionally send notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
5. PRIVACY AND CONFIDENTIALITY
5.2. Confidential Information. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.
(a) A party’s Confidential Information shall not be deemed to include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
(b) Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
(c)The Customer acknowledges that details of the Product, and the results of any performance tests of the Product, constitute FusionIQ’s Confidential Information.
5.3.Survival of Section. This section shall survive termination of this Agreement, however arising.
6. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRODUCT IS PROVIDED “AS IS,” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND. FUSIONIQ AND ITS THIRD PARTY LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, PERFORMANCE AND ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH CUSTOMER. SHOULD THE PRODUCT PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
7. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED FUSIONIQ AND ITS AFFILIATES (INCLUDING WITHOUT LIMITATION ITS AGENTS, SUPPLIERS, LICENSORS, AND PARTNERS) AND THEIR RESPECTIVE EXECUTIVES, EMPLOYEES, SHAREHOLDERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EACH OF FUSIONIQ, ITS AFFILIATES, OFFICERS, EMPLOYEES, SHAREHOLDERS AND CONTRACTORS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT AND THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO FUSIONIQ FOR THE SERIVCES AT ISSUE DURING THE THREE (3) MONTHS PRIOR TO THE EVENT WHICH GAVE RISE TO THE DAMAGES IN QUESTION. IF THE SOFTWARE AND PRODUCT ARE PROVIDED WITHOUT CHARGE, THEN THERE SHALL BE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH.
Each party shall indemnify, assume the defense of, and hold harmless the other party and its directors, officers, employees, and agents from every claim, loss, damage, injury, expense (including attorney’s fees), judgment, and liability of every kind, nature, and description arising in whole or in part from the indemnifying party’s negligent, fraudulent, or illegal acts or omissions except, as to the party requesting indemnification, to the extent such Liability results in whole or in part from the unauthorized, negligent, fraudulent, or illegal act or omission of the party requesting indemnification.
The following defined terms apply to this Agreement.
Affiliates: FusionIQ’s directors, managers, officers, stockholders, members, agents, representatives, employees and affiliated entities.
Authorized Users: those employees, agents and independent contractors of the Customer who are Authorized by the Customer to use the Product and who are covered by a paid subscription in accordance with FusionIQ’s subscription policies.
Business Day: any day which is not a Saturday, Sunday or public holiday in the US.
Confidential Information: information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information and as otherwise defined in Section 5.
Content: financial information, data, analytics, scoring, and other information that is owned by FusionIQ or its licensor, and provided to Customer through a display on its website, email notifications, and/or downloads.
Documentation: the document made available to the Customer by FusionIQ online via www.myfusioniq.com/Product or such other web address notified by FusionIQ to the Customer from time to time which sets out a description of the Product and the user instructions for the Product.
Effective Date: the date of this Agreement.
Normal Business Hours: 8.00 am to 6.00 pm local Eastern US time, each Business Day.
Personal Data: personal information including without limitation personal details, family and lifestyle details, education and training, medical details, employment details and financial details.
Product: the subscription Product provided by FusionIQ to the Customer under this Agreement.
Subscription Fees: the subscription fees payable by the Customer to FusionIQ for the User Subscriptions, as set out the Pricing Schedule on the website or as provided to Customer.
Subscription Term: has the meaning given in Section 1.3.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to Sections 1.1 and 1.2 which entitle Authorized Users to access and use the Product and the Documentation in accordance with this Agreement.
10. MISCELLANEOUS PROVISIONS
10.1.Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA, exclusive of its conflicts of laws provisions, and any suit under this Agreement shall exclusively be brought in a federal or state court in Massachusetts.
10.2.No Waiver. The failure of FusionIQ to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by FusionIQ.
10.3.Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
10.5.No Assignment. You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of FusionIQ. FusionIQ may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void.