These Terms of Service (“Agreement”) is a legal agreement between You and FutureSimple Inc. (“FutureSimple”) governing Your use of the Zendesk Sell Services (the service previously known as “Base”), including any applicable free trials. Please read this Agreement carefully.
By signing up to the Services and completing Your registration, or execution of a counterpart signature page hereto, You indicate Your acceptance of this Agreement and agree to abide by the terms and conditions set forth herein. If You are entering into this Agreement on behalf of a business or other legal entity, You hereby represent and warrant that You have the authority to bind such entity and its Affiliates to the terms and conditions of this Agreement, in which case “You” or “Your” shall refer to such entity and its Affiliates. If You do not have such authority, or if You do not agree with the terms and conditions of this Agreement, You may not accept this Agreement nor may You use the Services or receive Professional Services hereunder.
In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:
“Account” means any accounts or instances created by or on behalf of Subscriber or its End-Users within the Services.
“Affiliates” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customization” means any Deliverable that is included in the Professional Services.
“Deliverable” means any software, documentation, or other materials expressly required to be delivered to You pursuant to a SOW.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by FutureSimple to You on the Zendesk Sell website; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
“End Users” means individuals sixteen years or older who are authorized to access and use the Services under Your Subscription. End Users may include but are not limited to You and Your employees, consultants, contractors, and End-Users.
“Fees” means Subscription Fees, Professional Services Fees, and any other amounts due to FutureSimple and payable by You under this Agreement.
“Order Forms” means the ordering documents that are entered into by You and FutureSimple from time to time, in the form provided by FutureSimple. Order Forms are deemed incorporated herein. For avoidance of doubt, either: (1) a written document provided by FutureSimple and captioned as an “Order Form”; or (2) any online form within the Services, into which You enter a Subscription Term and number of seats applicable to a Subscription, together with payment information, in accordance with the terms.
“Personal Data” means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
“Professional Services” means the professional services provided to You by FutureSimple pursuant to a SOW under this Agreement.
“Professional Services Fees” means the fees set forth in an SOW under this Agreement.
“Residuals” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) FutureSimple has developed or is developing in connection with the business of creating and offering the Services. Residuals do not include Your Confidential Information or Your Data.
“Services” means the online CRM application provided by FutureSimple and the underlying servers and software used to provide such application (collectively the “System”).
“Software” means software provided by FutureSimple (either by download or access through the Internet) that allows End-Users to use any functionality in connection with the applicable Service.
“Statement of Work” or “SOW” means a statement of work to be performed by FutureSimple that references this Agreement and has been executed by the parties hereto. Each Statement of Work shall be deemed incorporated herein.
“Subscription” means the right to access the Services during the Subscription Term.
“Subscription Fees” means the fees for a Subscription to each version of the Services as set forth on the FutureSimple website, or, to the extent that an Order Form provides for Subscription Fees that differ from those on the Zendesk Sell website, the fees set forth in such Order Form.
“Subscription Term” means the period during which You have agreed to subscribe to the Services with respect to any individual End-User.
“Third Party Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which the Services links to, or which You may connect to or enable in conjunction with the Services, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
“Your Data” means any personally identifiable data uploaded by You to the Services that would typically be provided in the normal course of using the Services, as well as all information generated by the End Users during the use of the Services. Your Data includes, without limitation, any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.
“Zendesk Sell Voice” means the voice telephone functionality that may be included in one or more versions of the Services.
2.1 Registration. You must be sixteen years or older to register for the Services, and must provide complete and accurate information during the registration process, including a valid credit card number that You are authorized to use if You are registering for a paid Subscription.
2.2 Free Trial. FutureSimple may make all or part of the Services available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to Zendesk Sell, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by FutureSimple upon receiving Your registration, or (ii) the date You execute an Order Form for a Subscription under this Agreement. ACCESS TO THE SERVICES IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND DURING THE FREE TRIAL. YOUR DATA ENTERED, AND ANY SPECIFIC SETTINGS OR PREFERENCES YOU OR YOUR END USERS MAKE, DURING THE FREE TRIAL WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION OR EXPORT SUCH DATA/SETTINGS PRIOR TO THE EXPIRATION OF THE FREE TRIAL.
2.3 Subscription. FutureSimple shall make the Services available to You and Your End Users pursuant to this Agreement and all Order Forms during the Subscription Term. You agree that Your purchase of the Subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by FutureSimple with respect to future functionality or features.
2.4 Support. Support via email and phone is available in connection with a paid Subscription.
3.1 Zendesk Sell Outlook integration. The Zendesk Sell Outlook Integration (“SOI”) Application is a Windows application that integrates with an End User’s Outlook desktop application and uploads contacts from folders selected by the End User to the Services. SOI requires an active internet connection. The SOI installer (i) requires administrative access; (ii) may download and install additional software required for the proper functioning of SOI; (iii) will modify the Windows system registry; and (iv) may require changing firewall rules in order to let components of SOI communicate with each other. Once installed, SOI may (a) store additional information in the End User’s Outlook data files, including metadata about contacts and emails; (b) modify information in the End User’s Outlook data files, though such modification is limited to folders created and managed by SOI; and (c) collect technical data, including information about application crashes and usage statistics.
3.2 Mobile Apps. FutureSimple may offer applications that allow You to access the Services on Your mobile device, including, for example, Windows Phone and devices running the Android or iOS operating system. Mobile devices must be purchased separately and are not included in Your Subscription. Zendesk Sell mobile apps require an active internet connection, and may incur data charges with Your wireless carrier, including roaming charges where applicable. Zendesk Sell mobile apps may collect technical data, including information about application crashes and usage statistics, and may use certain third party libraries or modules. Any such mobile apps offered by FutureSimple shall constitute part of the Services, and as such their usage is subject to the terms and conditions of this Agreement.
4.1 Ownership of Your Data. You retain all right, title and interest in and to all Your Data. FutureSimple shall not access Your Data except to respond to service or technical problems, or at Your request.
4.2 Collection of Your Data. You are responsible for all activities that occur in Your Account and for Your End User’s compliance with this Agreement. You shall, and shall cause Your End Users to, comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with the use of the Services, including without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Telephone Consumer Protection Act, the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the European General Data Protection Regulation 2016/679 and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws. You are responsible for the collection, legality, protection and use of Your Data that is stored or used in connection with the Services. FutureSimple will not be responsible for any loss or disclosure of Your Data (or any damages related thereto) resulting from You or Your End Users’ failure to adequately secure their user identification and passwords or otherwise.
4.3 Acceptable Use. You and Your End Users shall use the Services for Your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the Services or tamper with other customer accounts of the Services, (ii) access data in the Service not intended for You, (iii) log into a server or account on the Services that You are not authorized to access, (iv) attempt to probe, scan or test the vulnerability of any aspect of the Services or to breach the security or authentication measures without proper authorization; (v) perform any action which renders any part of the Services unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Services or make the Services available to a third party other than as contemplated in this Agreement; (vii) use the Services for time-sharing or service bureau purposes or otherwise for the benefit of a third party; or (viii) provide to third parties any evaluation or Free Trial version of the Services without FutureSimple’s prior written consent.
4.4 Communications Responsibilities. You shall be responsible for the content of all communications sent through the Services, and shall comply with all applicable laws and regulations in Your use of the Services. You agree that You will not use the Services to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of a third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation. You further agree that You shall not use the Services for the purpose of making emergency calls or providing emergency services.
4.5 Zendesk Sell Voice Responsibilities. You are solely responsible for Your operation of Zendesk Sell Voice in compliance with all applicable laws in all jurisdictions governing use of the Zendesk Sell Voice service by You and Your End Users, including but not limited to telephone recording and wiretapping laws and consumer and/or data protection laws.
4.6 Breach of Guidelines. In the event You or Your End Users materially breach the provisions of this Section 4, FutureSimple will endeavor, to the extent legally permissible, to provide You with a reasonable opportunity to remove or disable access to the offending material or content, provided, however, that FutureSimple reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, FutureSimple reserves the right to immediately suspend access to the Services if such breach, in FutureSimple’s reasonable opinion, does or may present an imminent threat to the Services, other customer accounts, or constitutes abusive or threatening behavior.
5.1 Acquisition of Non-FutureSimple Products and Services. We acknowledge that Third Party Services may be made available to You from time to time by FutureSimple and/or third parties - If you decide to enable, access or use Third Party Services, be advised that Your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Data) or any interaction between You and the provider of such Third Party Services. You irrevocably waive any claim against Zendesk with respect to such Third Party Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Third Party Services, or Your reliance on the privacy practices, data security processes or other policies of such Third Party Services.
5.2 Third Party Services and Your Data. You further acknowledge that if You acquire Third Party Services for use with Your Subscription, FutureSimple may allow the providers of such services to access Your Data in order to allow such applications to interoperate with the Services and You hereby authorize FutureSimple to provide Your Data to such providers in the event You enable Third Party Services. FutureSimple shall not be responsible or liable for any disclosure, modification or deletion of Your Data resulting from any such access by Third Party Service providers.
6.1 Professional Services. You hereby engage FutureSimple to render the Professional Services set forth on each SOW referencing this Agreement. The Professional Services and each SOW are governed by this Agreement. Changes to the scope of the Professional Services or any SOW may be made only in writing, signed by authorized representatives of both parties.
6.2 Acceptance of Deliverables documented in a SOW. Promptly upon FutureSimple’s notice that it has implemented or completed a Deliverable, You will test and evaluate each such Deliverable to determine whether each Deliverable conforms to the specifications for such Deliverable, as provided in the applicable SOW (the “Acceptance Test”). You may deliver a notice of rejection to FutureSimple if a Deliverable fails the Acceptance Test, advising FutureSimple as to which aspects of the Deliverable failed, with sufficient detail to allow FutureSimple to reproduce such failure. FutureSimple shall, at no cost to You, promptly remedy such failure and deliver the corrected Deliverable to You. In the event that FutureSimple does not receive a notice of rejection from You within two (2) business days (or such other period as may be expressly provided for in the applicable SOW) after re-delivery of a Deliverable, such Deliverable shall be deemed “Accepted” and the Acceptance Test for such Deliverable shall be deemed completed pursuant to any applicable requirements of the relevant SOW or otherwise.
6.3 Your Responsibilities. You shall provide suitable equipment, information, and site and system access and facilities as are appropriate and reasonably necessary to enable FutureSimple to perform the Professional Services or those which are specified in the applicable SOW. You acknowledge and agree that FutureSimple’s performance is dependent on and subject to such performance by You or third parties of their responsibilities in a timely manner and subject to any assumptions regarding the Professional Services referred to in the applicable SOW. FutureSimple shall be entitled to rely on, and You shall be responsible for, all decisions, instructions and approvals of Your project administrative and other personnel in connection with the Professional Services. You shall procure all consents, licenses, approvals or permissions as may be necessary to enable FutureSimple to perform the Professional Services, with such assistance from FutureSimple as You may reasonably request.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Your Data. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own confidential information (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8.1 Subscription Fees. Except as otherwise provided in an Order Form, Subscription Fees are set forth on the Zendesk Sell website. Use of Zendesk Sell Voice is subject to additional charges, including applicable telecommunications service rates. Except as otherwise provided in the Order Forms, all Subscription Fees are quoted in United States currency; are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. FutureSimple may modify the Subscription Fees on thirty (30) days’ email notice. In the event You upgrade Your Subscription, the Subscription Fees applicable to Your new version of the Services will take effect immediately, with such increased fees calculated on a pro-rated basis, taking into account the number of days remaining in the then-current Subscription. If paying via payment method other than credit card, we will charge You at month end for remainder of Your term. If You downgrade, no adjustment will be made during the current Subscription Term. A valid credit card that You have the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties or in an Order Form. Unless otherwise provided in an Order Form, paid Subscriptions will be billed in advance on a monthly, annual, 2-year or other, basis, starting on the effective date documented in the Order Form.
8.2 Professional Services Fees. You shall pay to FutureSimple all of the fees for Professional Services specified in the SOWs. Except as otherwise provided in the applicable SOW, all fees are quoted in United States currency; payment obligations are non-cancellable; and Professional Services Fees are non-refundable and shall not be subject to setoff or other reduction. Unless otherwise stated in the applicable SOW, Professional Services Fees are due in advance upon execution of the applicable SOW.
8.3 Overdue Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance, per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.
8.4 Suspension of Platform Access and Service. If Your Account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), FutureSimple reserves the right to suspend Your access to the Services and FutureSimple’s performance of Services under any applicable SOWs, without liability to FutureSimple, until Your Account is paid in full.
8.5 Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than FutureSimple’s income taxes. If FutureSimple pays any such taxes on Your behalf, You agree to reimburse FutureSimple for such payment unless You provide FutureSimple with a valid exemption certificate authorized by the appropriate taxing authority.
8.6 Expenses. If FutureSimple is required to incur any additional costs or expenses in providing You Services, Professional Services or support under this Agreement, FutureSimple shall first obtain Your written approval.
9.1 Proprietary Rights in the Services. The Services and all intellectual property rights therein and all intellectual property rights relating to the provision of support are owned or licensed by FutureSimple. Except for the Subscription granted hereunder, nothing in this Agreement gives You any right, title or interest to the Services or related support.
9.2 Services Restrictions. You shall not: (i) modify, translate, or create derivative works based on the Services; (ii) create any link to the Services or frame or mirror any content contained or accessible from the Services, (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (iv) or access the Services in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Services.
9.3 Work Product. FutureSimple owns all work product, including Customizations, produced as part of the Professional Services, and all intellectual property in and to such work product. For avoidance of doubt, as between the parties, FutureSimple owns and shall own all proprietary or other rights in or to the Professional Services, Residuals, and Deliverables. To the extent that a Customization has been provided under a Statement of Work, FutureSimple will support such Customization as part of the Services; provided, however, that FutureSimple reserves the right to deprecate, replace, modify, rebuild, or discontinue (collectively, the foregoing shall be referred to as “Replacement”) any such Customization, if in each such case: (I) FutureSimple provides and supports substantially equivalent functionality within the Services during the Subscription Term ; or (II) You no longer require the functionality provided by such Customization; or (III) You otherwise consent to the Replacement.
9.4 Residuals. You acknowledge that FutureSimple is in the business of creating and offering the Services. In connection with such business, FutureSimple has developed and continues to develop Deliverables and Residuals. To the extent Deliverables or Residuals are made available to You other than through the Services, (i) You shall have a perpetual, irrevocable right to use, copy, modify, and create derivative works of such Deliverable or Residual in connection with Your usage of the Services, and (ii) nothing shall restrict FutureSimples ongoing right to use any such Deliverables or Residuals, except to the extent of restrictions on FutureSimple’s usage of Customer Proprietary Deliverables expressly set forth in a Statement of Work.
10.1 Term of the Agreement. The “Term” of this Agreement commences on the Effective Date and continues until the latest of: (i) the expiration or termination of Your Free Trial; (ii) in the case of a monthly Subscription, expiration of such Subscription or termination as provided in 10.3(b) or 10.3(c) below; (iii) the expiration of the Subscription Term (and any applicable renewal terms) set forth or provided for in the applicable Order Form, or termination as set forth in Section 10(c) below; or (iv) expiration or termination of each SOW executed hereunder.
10.2 Termination by You. You may cancel a monthly Subscription (but not a subscription for a specific term longer than one month set forth in an Order Form) at any time by providing notice to FutureSimple via the account management functions on Zendesk Sell’s website. Upon cancelling Your Account, FutureSimple will allow a 30-day grace period in which You will be able to reactivate Your Account and restore Your data. In the case You wish Your data to be completely and permanently removed from FutureSimple’s application servers, please send an email to our support team at firstname.lastname@example.org.
10.3 Termination for Cause. This Agreement, any Subscription and/or any applicable SOW may be terminated by either party for cause: (a) upon thirty (30) days’ written notice of breach to the other party, if the other party has materially breached this Agreement and such breach remains uncured at the expiration of such period; (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately upon notice in the event of the other party’s material breach of Section 4 hereof.
10.4 Zendesk Sell Voice Termination. FutureSimple may disable the phone numbers provided to You for the use of Zendesk Sell Voice if, in FutureSimple’s sole discretion, such numbers are substantially underused for thirty (30) days, or if Your Subscription is otherwise suspended, terminated or cancelled.
11.1 Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
11.2 Functionality Warranty. FutureSimple warrants that, during the Subscription Term, the Services will perform materially in accordance with the then-current version of the applicable Documentation provided by FutureSimple.
11.3 Security Warranty. FutureSimple or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by FutureSimple, whether by accident or otherwise.
11.4 Professional Services Warranty. FutureSimple warrants that it will perform the Professional Services related to each Deliverable in a competent and workmanlike manner and in accordance with generally accepted industry standards for similar types of services.
11.5 Remedy. FutureSimple shall, as Your sole and exclusive remedy and FutureSimple’s sole and exclusive liability for a breach of the warranties set forth in Section 11 hereunder, (i) use commercially reasonable efforts at its own expense to cause the Services to comply with the warranties in Section 11(b) and (c), and re-perform any portion of the Professional Services that are not provided in compliance with the warranty in Section 11(d), provided in each case that such non-compliance is promptly brought to FutureSimple’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.
11.6 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS-IS,” AND FUTURESIMPLE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. FutureSimple does not warrant that the Services or the functions contained in the Services will meet Your requirements or that the operation of the Services will be uninterrupted or error- free. Further, FutureSimple does not warrant that all errors in the Services can or will be corrected. FutureSimple will not be responsible for any loss of Your Data or inability to perform certain tasks resulting from Your decision to downgrade Your Subscription.
12.1 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF (I) FOR CLAIMS BASED ON PROFESSIONAL SERVICES PROVIDED UNDER AN SOW, THE TOTAL PROFESSIONAL SERVICES FEES PAID OR PAYABLE BY YOU UNDER SUCH SOW IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; AND (II) FOR CLAIMS BASED ON THE SERVICES OR THIS AGREEMENT GENERALLY, THE TOTAL SUBSCRIPTION FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
12.2 Exclusion of Consequential and Related Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF FUTURESIMPLE), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
12.3 The limitations of liability under Sections 12.1 and 12.2 shall not apply to the respective indemnification obligations set forth in Section 13 herein.
12.4 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, FUTURESIMPLE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13.1 Indemnification by FutureSimple. FutureSimple shall indemnify and hold You harmless against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against You by a third party alleging that the Services, used as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if FutureSimple reasonably believes that Your use of any portion of the Services and/or related support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then FutureSimple may, at its expense: (i) procure for You the right to continue using the Services or support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the Services and/or support as set out herein. FutureSimple shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Services or support with other equipment or software not supplied by FutureSimple or in a manner not consistent with Base’s instructions.
13.2 Indemnification by You. You agree to indemnify and hold FutureSimple harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims made or brought against FutureSimple, including its affiliates, parent company, officers or directors by a third party arising from or relating to (i) Your breach of this Agreement, or (ii) Your use of Your Data or the Services.
13.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
14.1 Entire Agreement. This Agreement, inclusive of the Order Forms, SOWs and any written amendments or additions thereto, constitutes the entire Agreement and sets forth the entire understanding between You and FutureSimple with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. In the event of any inconsistency between the terms and conditions of this Agreement and the Order Forms or SOWs now or hereafter appended hereto, the terms of the Order Form or SOWs shall govern.
14.2 Marketing. Neither party may issue press releases regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.
14.3 Relationship of You and Sell. You and FutureSimple are independent contractors. This Agreement does not create a joint venture or partnership between You and FutureSimple; neither party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
14.4 Modifications and Waiver. FutureSimple may revise this Agreement from time to time. Notice of any material changes to the Agreement will be provided via a link when logging into the Services. Any waiver of any right or remedy under this Agreement by FutureSimple must be in writing and signed by FutureSimple. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
14.5 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any of FutureSimple’s Affiliates or in connection with any merger or change of control of FutureSimple or the FutureSimple group of companies or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
14.6 Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of California, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of San Francisco, California, USA, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
14.7 Federal Government End Use Provisions. If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
14.8 Export Compliance and Use Restrictions. The Services and other Software or components of the Services that We may provide or make available to You or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You and End-Users are located.
14.9 Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at email@example.com.
14.10 Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to FutureSimple shall be addressed as follows:
1019 Market Street
San Francisco, CA 94103
14.11 Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
14.12 Force Majeure. Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
Sections 1, 7 and 9-14 shall survive any termination of our agreement with respect to use of the Services by You or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
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