Effective Date: January 1, 2023
References to Customer in these General Terms and Conditions include“you”, “Company”, “Client” or other terms used in the proposal letter(“Proposal”) or statement of work (“SOW”), refer to the individual(s) orentity(ies) for whom the services are being performed and the individual(s) orentity(ies) who signed the Agreement.
1. FUTUREVIEW SERVICES. In addition to the services defined in the Proposal or SOW, FutureView Systems, Inc. (“FutureView”) may grant Customer access to the FutureView Platform, a tool to assist with financial operations including budgeting, forecasting and reporting (the “Services”). To the extent that the Services include intellectual property rights of FutureView or of any third-party, the access granted is to the extent that FutureView is able to access such third-party rights. FutureView agrees not to modify FutureView Platform in any way that reduces or decreases their features or functionality. FutureView will be responsible for configuring the FutureView Platform to ingest data from Customer’s financial and operational systems. Customer may purchase additional services from FutureView as mutually agreed.
2. CUSTOMER RESPONSIBILITIES. Customer is responsible for providing FutureView with resources FutureView requires to provide Services to Customer, including but not limited to:
a. Access to the customers G/L system and other systems tools as necessary to enable FutureView to extract transaction data from the G/L. If the customer’s G/L is NetSuite, their instance must include Suite Analytics Connect
b. Current financial reports, as available
c. Organizational chart, as available
d. Employee-level information, limited to name, title, start date, compensation from the official HR system to facilitate a detailed planning process
e. Security requirements for each user in writing
f. Identifying key individuals
g. Customer will allow FutureView to use Customer’s name and logo in marketing materials with Customer’s written consent.
3. EFFECTIVE DATE, TERM AND TERMINATION
3.1 Term of Agreement. This Agreement applies to all services performed at any time (including before the date of this Agreement) arising out of or related to the subject matter of this Agreement and will terminate when there are no outstanding statements of work between the parties.
3.2 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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. In the event that the Customer terminates due to a FutureView breach that is deemed incurable, a pro-rated portion of any fees paid in advance will be refunded to Customer and no further payments related to this agreement will be due from the Customer.
3.3 Export. Customer must request an export of their data within 30 days following the termination of this agreement. Customer acknowledges that this data will be provided in multiple Comma Separated Value (CSV) files at no additional charge.
3.4 Surviving Provisions. Sections 4, 5, 6, 7.1, 7.3, 9, 10, and 11. will survive any termination or expiration of this Agreement.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all fees in accordance with terms specified in this Agreement. Mutually agreed upon out-of-pocket reimbursable expenses incurred by FutureView will be billed by FutureView to Customer at cost. Unless otherwise specified, fees are due upon receipt of invoice.
4.2 Taxes. FutureView's fees do not include any taxes, levies, duties or similar governmental assessments (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.
5. PROPRIETARY RIGHTS AND LICENSES; USAGE RESTRICTIONS; DATA: PERSONALLY, IDENTIFIABLE INFORMATION
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, FutureView reserves all of its right, title and interest in and to the Services, including all of its related intellectual property rights. No rights are granted to Customer hereunder, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein. There are no implied rights of any kind.
5.2 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer (b) sell, resell, license, sublicense, distribute, make available, or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use any Services to access or use any of FutureView intellectual property except as permitted under this Agreement, (d) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, or (e) disassemble, reverse engineer, or decompile the Service. FutureView reserves the right (but is not obligated) using third-party Affiliates and Partners to monitor and/or audit activities occurring through or involving the FutureView Platform to verify Customer’s compliance with this Agreement (including restrictions on number and type of Users) and/or investigate any allegation that any activity occurring through or involving the FutureView Platform does not conform to this Agreement. Customer agrees not to block or interfere with such monitoring.
5.3 Data Privacy & Protection. FutureView follows best practices and uses encryption at rest and in transit wherever possible.
5.4 Customer Data. FutureView agrees that as between Customer and FutureView, Customer’s data provided in connection with FutureView’s provision of the Services is owned and belongs to Customer. Customer acknowledges that FutureView acts as a data processor. Each party hereto undertakes to comply with the applicable privacy and data security laws in relation to its use of such data. Customer hereby grants permission to FutureView for FutureView to use the data for providing Customer the Services and FutureView may share Customer’s data for providing the Services, improving and maintaining the Services and related applications and their services and for analytical and marketing purposes in a manner where such data is aggregated with other user data and cannot be reverse engineered into Personally Identifiable Information (as defined below), and FutureView may share Customer’s data with our trusted third-party Affiliates and Partners in implementing this data usage, who will offer the same level of data privacy and protection as FutureView.
5.5 Personally Identifiable Information. Customer agrees that notwithstanding anything to the contrary herein, Customer shall handle any Personally Identifiable Information (as defined below) that it inputs into the FutureView systems in the following manner: (i) in the event Customer seeks to export such Personally Identifiable Information, Customer shall use a commercially reasonable contact management tool to provide an opt-out mechanism, compliant with the applicable privacy and data security laws, for anyone who has provided Customer Personally Identifiable Information that is stored on FutureView’s systems and (ii) Customer agrees that FutureView can delete such Personally Identifiable Information in the event the Customer exercises the FutureView opt-out mechanism. Customer shall indemnify and hold harmless FutureView from any claim brought against FutureView alleging: (i) that Personally Identifiable Information stored by Customer with FutureView was improperly used where such use was by Customer while such Personally Identifiable Information was stored by FutureView; (ii) any use after Customer has exported such Personally Identifiable Information (iii) or any processing of such Personally Identifiable Information by FutureView in accordance with this Agreement.
The term Personally Identifiable Information means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personally Identifiable Information includes, but is not limited to the following:
a. A first and last name.
b. A home or other physical address, including street name and name of a city or town.
c. An e-mail address.
d. A telephone number.
e. A social security/insurance number.
f. Any other identifier that permits the physical or online contacting of a specific individual or their identification.
g. Information concerning a user that the Web site or online service collects online from the user and maintains in personally identifiable form in combination with an identifier described in this section.
6. CONFIDENTIALITY. The party receiving Confidential Information (the “Receiving Party”) agrees that for the duration of this Agreement and thereafter, Receiving Party shall not use, permit use nor disclose any Confidential Information disclosed to it by disclosing party (the “Disclosing Party”) except as expressly permitted herein as necessary and in connection with its activities as an under this Agreement. “Confidential Information” means non-public information that is designated as being confidential or that Receiving Party has reason to know is considered by Disclosing Party to be confidential. Confidential Information includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products or services, the marketing or promotion of any of the Services, business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential. Confidential Information does not include any information, however designated, that Receiving Party can document: is or subsequently became publicly available without Receiving Party breach of any obligation under this Agreement; became known to Receiving Party prior to disclosure under this Agreement; was independently developed by Receiving Party without reliance on any Confidential Information of Disclosing Party or was disclosed to Receiving Party by a third party not subject to a duty of confidentiality to Disclosing Party. Customer shall be entitled to seek equitable relief, including an injunction, in the event of any breach of the provisions of this Agreement.
7 REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Representations by both Parties. Each party represents that it has validly entered into this Agreement and has the legal power to do so and that each party’s entering into this Agreement does not violate or contravene the law, the order of any court, or the rights of third parties. Each party undertakes to comply with the applicable privacy and data security laws.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. NO WARRANTY, CONDITION OR REPRESENTATION IS GIVEN, AND NO LIABILITY IS ACCEPTED, BY FUTUREVIEW IN RELATION TO THIRD PARTY RIGHTS.
FutureView shall maintain, at its own expense, insurance policies customary for services companies of its size and nature. On Customer's request, FutureView will provide insurance certificate(s) confirming the foregoing.
Each of the Parties will indemnify, defend, and hold harmless the other, their affiliates, and their successors, assigns, officers, directors, employees, and agents from any third party claim, liability, loss, damage, lien, judgment and cost, including attorneys’ fees and litigation expenses, with respect to: (a) the other Party’s failure to comply with its obligations under this Agreement and (b) any breach of warranties made by the other Party under this Agreement. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, RECOVERING DATA OR ERRORS IN OR LOSS OF ANY DATA, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. GENERAL PROVISIONS
11.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between FutureView and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
11.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
11.3 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Invoices), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Compliance with Export and Other Laws. (a) Services, including any software, documentation, and any related technical data included with or contained in the FutureView Platform, may be subject to U.S. or other applicable export control laws and regulations, orders, embargoes, or sanctions including the U.S. Export Administration Regulations (“Applicable Export Laws”). Customer shall not, and shall not permit any User or any third-party to, access, use, export or re-export the FutureView Platform to access, use, export or re-export Customer Data, in or to an embargoed country or in violation of any Applicable Export Law. FutureView represents that neither it nor any of its Affiliates is named on any U.S. government denied-party list. Customer represents that neither it nor any of its Affiliates nor any User is named on any applicable government denied-party list. Customer shall indemnify FutureView and its third-party Affiliates and Partners against all costs and other losses resulting directly or indirectly from Customer’s non-compliance with Applicable Export Laws and the provisions of this Section. (b) Without limiting the foregoing, Customer shall at all times comply and cause its Users to comply with all applicable laws and regulations in its use of the FutureView Platform, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.
11.8 Force Majeure. If FutureView cannot perform its obligations for civil or military authority, war, flood, fire, epidemic, or other cause beyond control and unrelated to its fault or negligence (“Unavoidable Delay”), FutureView is excused from performance during the Unavoidable Delay.
11.9 Governing Law and Venue. Any claim or dispute arising from, or relating to, a Service, Deliverable or this Agreement are governed by the laws of the State of Delaware, without regard to its conflicts of law provisions. Either Party may commence litigation, but only in a federal or state court in Delaware. Each Party consents to the personal jurisdiction of such courts and will bear its own costs in dispute resolution.