END USER LICENSE AGREEMENT
PLEASE READ CAREFULLY BEFORE USING THIS SOFTWARE
This End User License Agreement (“Agreement”) is a legal agreement between you and FinTech Innovations LLC, a Michigan limited liability company (“FinTech”), and is effective as of the date you accept these terms.
FinTech owns a software solution (“ICE Cloud”), and FinTech, pursuant to the terms below, agrees to license the use of ICE Cloud to you.
The parties therefore agree as follows.
1. Acceptance. By clicking “I Agree,” indicating acceptance electronically, or by downloading, installing, accessing, or using ICE Cloud, you agree to these terms. If you do not agree to this Agreement, then your sole remedy is to cease using ICE Cloud.
2. License Grant and Limitations.
(a) License. You agree that ICE Cloud is licensed, not sold. All intellectual property rights in ICE Cloud are owned by FinTech and are protected by law, including but not limited to United States copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. You are only granted certain limited rights to install and use ICE Cloud, and FinTech reserves all other rights in ICE Cloud not granted to you in writing herein. As long as you meet any applicable payment obligations and comply with this Agreement and any other agreements that apply to your use of ICE Cloud, FinTech grants you a limited, nonexclusive, nontransferable, revocable license to use ICE Cloud only for the period agreed upon, as set forth in writing and in your agreements with FinTech, and only for the purposes described by FinTech for ICE Cloud.
(b) Limitations. You shall not, and shall not permit any other Person to, access or use ICE Cloud except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
(1) copy, modify, or create derivative works or improvements of ICE Cloud;
(2) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available ICE Cloud to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(3) reverse-engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of ICE Cloud, in whole or in part;
(4) bypass or breach any security device or protection used by ICE Cloud or access or use ICE Cloud other than by the use of your authorized means;
(5) input, upload, transmit, or otherwise provide to or through ICE Cloud, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(6) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner ICE Cloud or FinTech Systems;
(7) remove, delete, alter, or obscure any documentation, warranties or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights from ICE Cloud;
(8) access or use ICE Cloud in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable Law;
(9) access or use ICE Cloud for purposes of competitive analysis of ICE Cloud or for the development, provision, or use of a competing software service or product or any other purpose that is to FinTech’s detriment or commercial disadvantage; or
(10) otherwise access or use ICE Cloud beyond the scope of the authorization granted under this section 2.
3. Availability.
(a) Generally. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, FinTech shall use commercially reasonable efforts to provide you access to ICE Cloud, except for:
(1) Scheduled Downtime in accordance with section 3(b);
(2) Service downtime or degradation due to a Force Majeure Event;
(3) any other circumstances beyond FinTech’s reasonable control, including your misuse of ICE Cloud or use of ICE Cloud other than in compliance with the express terms of this Agreement; and
(4) any suspension or termination of your access to or use of ICE Cloud as permitted by this Agreement.
(b) Scheduled Downtime. FinTech will use commercially reasonable efforts to schedule downtime for routine maintenance of ICE Cloud (“Scheduled Downtime”).
(c) Suspension or Termination of Service. FinTech may, directly or indirectly, and by use of a Disabling Device or any other lawful means, suspend, terminate, or otherwise deny your or any other Person’s access to or use of all or any part of ICE Cloud, without incurring any resulting obligation or liability, if: (i) FinTech receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires FinTech to do so; or (ii) FinTech believes, in its good faith and reasonable discretion, that: (x) you have failed to comply with any material term of this Agreement or accessed or used ICE Cloud beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (y) you are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the use of ICE Cloud; or (z) this Agreement expires or is terminated. This subsection does not limit any of FinTech’s other rights or remedies, whether at law, in equity or under this Agreement.
(d) Review. FinTech may, from time to time, review your use of ICE Cloud, to (i) assess compliance with this Agreement; and (ii) improve, enhance, or otherwise develop ICE Cloud and the services offered to you.
4. Your Obligations.
(a) Your Systems and Cooperation. You shall at all times during the term of this Agreement: (i) set up, maintain, and operate in good repair all necessary Customer Systems on or through which ICE Cloud is accessed or used; (ii) provide FinTech personnel with such access to Customer Systems as may be necessary, from time to time, for FinTech to offer ICE Cloud; and (iii) provide all cooperation and assistance as FinTech may reasonably request to enable FinTech to exercise its rights and perform its obligations under and in connection with this Agreement.
(b) Corrective Action and Notice. If you become aware of any actual or threatened activity prohibited by section 2, you shall immediately: (i) take all reasonable and lawful measures within your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to ICE Cloud); and (ii) notify Fintech of any such actual or threatened activity.
5. Security and Data.
(a) Your Responsibility. You have and will retain sole responsibility for: (i) all your data; (ii) all information, instructions, and materials provided by or on behalf of you in connection with the use of ICE Cloud; and (iii) your Customer Systems. You expressly agree that: (x) the use of ICE Cloud does not replace the need for you to maintain regular data backups or redundant data archives; and (y) FINTECH HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.
(b) Access. You shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to: (i) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of ICE Cloud; and (ii) control the content and use of your data, including the uploading or other provision of your data for processing by ICE Cloud.
6. DISCLAIMERS.
(a) AS IS. YOUR USE OF ICE CLOUD IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, ICE CLOUD IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FINTECH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT ICE CLOUD IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO ICE CLOUD. FINTECH DOES NOT WARRANT THAT ICE CLOUD IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION.
(b) COMPLIANCE. FINTECH DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF ICE CLOUD WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
7. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF FINTECH FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE USE OF ICE CLOUD DURING THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, FINTECH IS NOT LIABLE FOR ANY OF THE FOLLOWING: (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (ii) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET FINTECH SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF FINTECH AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ICE CLOUD AND ITS USE.
Further, you agree to indemnify and hold FinTech harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of ICE Cloud or breach of this Agreement (collectively referred to as “Claims“). FinTech reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by FinTech in the defense of any Claims.
8. Changes. FinTech reserves the right to change this Agreement at any time, and the changes will be effective when posted on FinTech’s website or when we notify you by other means. We may also change or discontinue ICE Cloud, in whole or in part. Your continued use of ICE Cloud indicates your agreement to the changes.
9. Trial Version. If you are using ICE Cloud on a trial basis, FinTech: (i) may offer certain features and functionality on a limited or restricted basis; (ii) may not offer certain features and functionally; and (iii) may terminate your trial at any time. If your trial is terminated or expires, you understand and agree that your data and content, if any, may no longer be available to you. For clarity, if you decide not to purchase a full version of ICE Cloud, you may not be able to access or retrieve any of your data or content that you added or created during the trial period.
10. Termination. FinTech may immediately, in its sole discretion, and without notice terminate your use of ICE Cloud if you fail to comply with this Agreement. Upon termination you must immediately stop using ICE Cloud and any outstanding payments will become due. Any termination of this Agreement will not affect FinTech’s rights to any payments due to it.
11. Export Restrictions. You acknowledge and agree that ICE Cloud, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export ICE Cloud in violation of these laws and regulations, directly or indirectly.
12. Customer Representations. You represent and state to FinTech that you own or otherwise have or will have the necessary rights and consents in and relating to your data and content so that you do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable Law.
13. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake, or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export, or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
14. Miscellaneous.
(a) Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
(b) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between this Agreement and any other document(s), the terms of this Agreement shall control.
(c) Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without FinTech’s prior written consent. No delegation or other transfer will relieve you of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Agreement is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(d) No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(e) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by both parties. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of El Dorado Hills and County of El Dorado, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(h) Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of any of your obligations would cause FinTech irreparable harm for which monetary damages would not be an adequate remedy and you agree that, in the event of such breach or threatened breach, FinTech will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15. Definitions. As used in this Agreement, the following defined terms have the following meanings:
“Agreement” means this End User License Agreement.
“Customer Systems” means your information technology infrastructure, including computers, software, business applications, web applications, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services.
“Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by FinTech or its designee to disable your access to or use of ICE Cloud automatically with the passage of time or under the positive control of FinTech.
“FinTech” means FinTech Innovations LLC, a Michigan limited liability company.
“FinTech Systems” means the information technology infrastructure used by or on behalf of FinTech in offering ICE Cloud, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by FinTech or through the use of third-party services.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby. Harmful Code does not include any FinTech Disabling Device.
“ICE Cloud” means a software solution owned by FinTech.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
