SAAS RIGHT TO USE AGREEMENT
This SAAS Right to Use Agreement (“RTU”) governs your use of the Fintainium, Inc. Financial Services Platform and associated upgrades, patches, and updates and related services (the “Platform”) currently provided or which will be provided by Fintainium, Inc., or any one of its subsidiaries or affiliated companies (collectively referred to as “FINTAINIUM”).
FINTAINIUM reserves the right to change, modify, add or delete articles in this RTU at any time, in accordance with the procedures described below in Section 9.
Capitalized terms used in this RTU shall have the meanings specified herein.
1. USE OF FINTANIUM FINANCIAL SERVICES PLATFORM.
1.1 FINTAINIUM grants You a non-exclusive, non-transferable, non-sublicensed, right to use the Platform (in whole or in part, the “Service Use”), for such time until either You or FINTAINIUM terminates this RTU. You must in no event use, nor allow others to use, the Platform or this Service Use without obtaining a written permission to do so from FINTAINIUM. FINTAINIUM is providing the Platform as an SAAS service; the Platform is not being licensed or sold hereunder.
As applicable, certain parts of the Platform may be using third party features, some of which are managed by third-party providers for which additional terms and/or costs may apply. You must comply with such additional terms: for instance, if the Platform features third party trade finance services or debt collection services then You must comply with the associated requirements of such third-party provider when using the Platform). Please review such additional terms and costs carefully.
1.2 You shall not, directly or indirectly (i) sell, rent out, lease, license, distribute, market, exploit the Platform or any of its parts, (ii) reverse engineer, reproduce, in whole or in part; (iii) “hack” programs or software applications for the Platform; (iv) remove, alter, disable or circumvent any copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this Platform and (v) export or re-export this Platform.
1.3 While using the Platform, You agree to comply will all applicable laws, rules and regulations. In all cases, You may only use the Platform according to its anticipated use.
For example purposes, and without limiting FINTAINIUM’s rights to take action against You, You may not:
a. create, use, share and/or publish by any means in relation to the Platform any material (text, words, images, sounds, videos, etc.) which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act (in particular, money laundering);
b. modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Platform, or its accessibility to other users, or the functioning of the partner networks of the Platform, or attempt to do any of the above;
c. transmit or propagate any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the Platform, and/or organize, participate in or be involved in any way in an attack on FINTAINIUM’s servers and/or the Platform and/or those of its service providers and partners;
d. transmit or communicate any material or content which, in the sole and exclusive discretion of FINTAINIUM, is believed or deemed offensive, including, but not limited to, language that is harmful, threatening, unlawful, abusive, harassing, defamatory, disparaging, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable;
e. harassing or threatening any other users of the Platform;
f. make inappropriate use of the help service or send untruthful reports or information to members of FINTAINIUM’s personnel;
g. falsely claim to be an employee or representative of FINTAINIUM or its partners and/or agents;
h. falsely claim an endorsement in connection with the Platform or with FINTAINIUM.
All title, ownership rights and intellectual property rights in and to the Platform (including, without limitation, all text, graphics, sounds, all messages or items of information, names, effects, dialogues, diagrams, concepts, videos, audio-visual effects, domain names and any other elements which are part of the Platform, individually or in combination) and any and all copies thereof are owned by FINTAINIUM. The Platform is protected by national and international laws, patent and copyright treaties and conventions and other laws. This Platform may contain certain licensed materials and, in that event, FINTAINIUM’s licensors may protect their rights in the event of any violation of this Agreement. Any reproduction or representation of the Platform Service Use in any way and for any reason is prohibited without FINTAINIUM’s prior permission and, if applicable, FINTAINIUM’s licensors’ and representatives’ respective written permission(s). Except as expressly set forth in this RTU, all uses of the Platform not expressly permitted hereunder to You are expressly reserved by FINTAINIUM.
This RTU confers no title or ownership in the Platform and should not be construed as a sale of any rights in the Platform.
3. ACCESS TO THE PLATFORM
3.1 THE PLATFORM MAY BE PROTECTED BY DIGITAL RIGHTS MANAGEMENT SOFTWARE (“DRM SOFTWARE”). IN SUCH CASE, YOU HEREBY AGREE, ACKNOWLEDGE AND CONSENT TO THE FOLLOWING REGARDING THE DRM SOFTWARE: (I) THE DRM SOFTWARE MAY LIMIT THE NUMBER OF SIMULTANEOUS USERS OF THE PLATFORM AND (II) AN ONLINE CONNECTION WILL BE REQUIRED TO USE THE PLATFORM. IN NO EVENT SHALL FINTAINIUM BE LIABLE IN CONNECTION WITH THE YOUR USE OF THE PLATFORM ASSOICATED WITH ANY DRM SOFTWARE.
3.2 If You are using the Platform on a Compatible Mobile Terminal, this Section 3.2 is applicable to You and to Your use of the Platform:
For this RTU, “Compatible Mobile Terminal” means any portable device capable of connecting to Internet to access the Platform. The term Compatible Mobile Terminals covers in particular feature phones, smartphones, tablet computers, and personal digital assistants (PDAs).
a. Platform Access. To use the Platform on a Compatible Mobile Terminal, You must have access to an electronic communication network. The connection costs (including but not limited to mobile providers’ and/or carriers’ costs), shall be exclusively borne by You. You acknowledge that the quality of the Platform, the response time or access to certain features may depend on the capacities of Your Compatible Mobile Terminal and of the electronic communication network. FINTAINIUM in no case will be held responsible for any reduction in response time or Platform performance. You acknowledge that the Platform may not be available for use on all mobile devices or through all carriers or network service providers.
4. CONSENT TO MONITOR.
When You are using the Platform FINTAINIUM may monitor Your actions while on the Platform.
FINTAINIUM is not responsible for inter-party dialogue and negotiation made possible by use of the Platform and does not endorse the opinions, advice and/or recommendations displayed or sent by You in on Platform. Such communications are the sole responsibility of the Platform user in question.
5. WARRANTY DISCLAIMER, LIMITATION OF LIABILITY.
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PLATFORM IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PLATFORM IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE“ BASIS. FINTAINIUM FINTAINIUM’S LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS DO NOT MAKE AND HEREBY DISCLAIM ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY OR OTHER TERMS INCLUDING AS TO: (A) ITS CONFORMITY, ACCURACY, CURRENTNESS, COMPLETENESS, RELIABILITY OR SECURITY (B) ITS SUITABILITY FOR A PARTICULAR USE; (C) IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT; (D) ITS MARKET VALUE; OR (E) YOUR SATISFACTION. FINTAINIUM DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTING THE PLATFORM TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM THE PLATFORM.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL FINTAINIUM, FINTAINIUM’S LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THE PLATFORM OR ANY RELATED THIRD-PARTY SERVICE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.
NOTWITHSTANDING THE AFOREMENTIONED LIMITATIONS OF LIABILITY, YOUR SOLE REMEDY IN THE EVENT OF A DISPUTE WITH FINTAINIUM OR ITS LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS IS TO CEASE TO USE THE PLATFORM. FOR ANY PLATFORM USE FOR USE ON A COMPATIBLE MOBILE TERMINAL THAT WOULD NOT MEET THE APPLICABLE LEGAL WARRANTIES, FINTAINIUM’S LIABILITY IS LIMITED TO THE REFUND (DIRECTLY OR INDIRECTLY THROUGH ITS CHANNEL PARTNERS OR ASSOCIATED SERVICE PROVIDERS) OF THE PURCHASE PRICE OF THE PLATFORM. IN NO EVENT FINTAINIUM, ITS AFFILIATES, LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS BE LIABLE FOR DAMAGES IN EXCESS OF ANY AMOUNT YOU HAVE PAID TO FINTAINIUM FOR THE PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
NOTHING IN THIS SECTION 6 SHALL AFFECT FINTAINIUM’S LIABILITY FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
FOR PURPOSES OF THIS SECTION 6, FINTAINIUM’S LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS RTU AGAINST YOU.
You are solely responsible for any damage caused to FINTAINIUM, its licensors, channel partners and associated service providers and subcontractors, other users of the Platform or any other individual or legal entity as a result of Your violation of this RTU.
YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED FINTAINIUM AND ITS AFFILIATES, THEIR LICENSORS, CHANNEL PARTNERS AND ASSOCIATED SERVICE PROVIDERS AND THEIR SUBCONTRACTORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES AND ALL COSTS (INCLUDING LAWYERS’ FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO YOUR FAULT AND/OR RESULTING FROM (A) A VIOLATION OF ANY PROVISION OF THIS RTU OR (B) YOUR USE OR MISUSE OF THE PLATFORM. FINTAINIUM reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which You agreed to indemnify FINTAINIUM. The provisions of this Section 7 shall remain in force after termination of this RTU.
The RTU is effective from the earlier of the date You execute a contract for use of the Platform until terminated according to its terms. Subject to any contract for Your use of the Platform, the terms of which will control, You and FINTAINIUM may terminate this RTU, at any time, for any reason. Termination by FINTAINIUM will be effective upon (a) notice to You or (b) termination of Your FINTAINIUM Account (if any) or (c) at the time of FINTAINIUM’s decision to discontinue offering and/or supporting the Platform. This RTU will terminate automatically if You fail to comply with any of its terms and conditions. Upon termination for any reason, FINTAINIUM will immediately block your access to and use of the Platform.
9. CHANGES TO THIS RTU OR TO THE PLATFORM.
FINTAINIUM reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this RTU for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this RTU by clicking on the “RTU” link located on the Platform. You are responsible for checking this RTU periodically for changes. If any future changes to this RTU are unacceptable to You or cause You to no longer be in agreement or compliance with this RTU, You may terminate this RTU in accordance with Section 8 and must immediately cease use of the Platform. Your continued use of the Platform following any revision to this RTU constitutes Your complete and irrevocable acceptance of any and all such changes.
FINTAINIUM may modify the Platform for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Platform. FINTAINIUM’s channel partners and associated service providers shall have no obligation to furnish any maintenance or customer support with respect to the Platform.
10.1 Export Controls. The Platform is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Platform and Your use of the Platform. The Platform may not be used by a national or resident of any country to which the United States has embargoed goods or services, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
10.2 Severance. If any court of competent jurisdiction or competent authority finds that any provision of this RTU is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this RTU shall not be affected. If any invalid, unenforceable or illegal provision of this RTU would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect FINTAINIUM’s initial intentions.
10.3 No Waiver. No failure or delay by FINTAINIUM to exercise any right or remedy provided under this RTU or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by FINTAINIUM or by the User.
10.4 Law, Jurisdiction and Dispute Resolution.
10.4.1 To the extent permitted by applicable law, this RTU, and any disputes or claims arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the United States and the State of New York, without giving effect to any principles of conflicts of laws.
10.4.2 For any claim related to this RTU FINTAINIUM or You, as the case may be, may offer to settle the claim, provided, however, that if the dispute is not resolved within 30 days from the date of an offer to settle the other party may invoke binding arbitration by filing a separate Demand for Arbitration in accordance with the arbitration rules of the State of New York, New York County (Manhattan), through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, in person, by telephone, online, or based solely on written submissions; (b) any in person arbitration will take place in New York City, New Yok County (Manhattan); (c) the ADR provider may award any form of relief; (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; (e) You hereby waive any right to a trial (by judge or jury) and you will abide by the dispute resolution mechanism in this Section.
10.4.3 All claims brought relating to this RTU must be resolved in accordance with this Section 10. All claims filed or brought contrary to this Section shall be considered improperly filed and a breach of this RTU. Should either party file a claim contrary to this Section, the other party may recover attorneys’ fees and costs, provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
For any questions concerning this RTU, you may contact FINTAINIUM at the following address: Fintainium, Inc.
8659 Baypine Rd., Suite 308
Jacksonville, FL 32256
ATTN: General Counsel