This SAAS Right to Use Agreement (“RTU”) governs your use of the Fintainium, Inc. Financial Services Platform and associated software, hardware, technology, upgrades, patches, and updates and related documentation and services (the “Platform”), as the same is currently provided or may be provided by Fintainium, Inc., or any one of its subsidiaries or affiliated companies (collectively referred to as “FINTAINIUM”).
FINTAINIUM reserves the right to modify 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 THE FINTANIUM PLATFORM.
1.1 FINTAINIUM grants to You a non-exclusive, non-transferable, non-sublicensed, right to use the Platform for such time until either You or FINTAINIUM terminates this RTU in accordance with its terms. You shall in no event use, nor allow others to use, the Platform without obtaining 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 require the use of services, features and/or functionality provided by third parties for which additional terms and/or costs may apply. You must comply with any additional terms provided to you by such third parties. For example, if Your use of the Platform involves third-party trade finance services or debt collection services, then You must comply with the associated requirements of the relevant third-party provider. 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 laws, rules and regulations applicable to your business. In all cases, You may only use the Platform in accordance with its intended use.
For example, and without limiting FINTAINIUM’s rights to take action against You, You shall 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 a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the commission 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 any 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, whether intentionally or unintentionally, 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. harass or threaten any Fintainium employee or any users or third-party providers associated with the Platform;
f. make inappropriate use of the help service or send untruthful reports or information to FINTAINIUM’s employees or any third-party;
g. falsely claim to be an employee or representative of FINTAINIUM or its partners and/or agents;
h. falsely claim an endorsement by or from 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 or its third-party licensors. The Platform is protected by national and international laws, patent and copyright treaties and conventions and other laws. The 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 reverse engineering of the Platform in any way and for any reason without FINTAINIUM’s prior written consent is strictly prohibited. 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: (A) THE DRM SOFTWARE MAY LIMIT THE NUMBER OF SIMULTANEOUS USERS OF THE PLATFORM, AND (B) AN ADEQUATE ONLINE CONNECTION WILL BE REQUIRED TO USE THE PLATFORM. IN NO EVENT SHALL FINTAINIUM BE LIABLE IN CONNECTION WITH YOUR USE OF THE PLATFORM CONTRARY TO THE RESTRICTIONS OF THE 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:
“Compatible Mobile Terminal” means any portable device capable of connecting to the Internet to access the Platform. The term Compatible Mobile Terminal covers feature phones, smartphones, tablet computers, and personal digital assistants (PDAs). FINTAINIUM may recommend certain Compatible Mobile Terminals for use with the Platform.
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 related thereto. 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 via the Platform. Such communications are the sole responsibility of You and the Platform user in question.
5. WARRANTY DISCLAIMER, LIMITATION OF LIABILITY.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE 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 AND 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 USE OF THE PLATFORM. FOR ANY USE OF THE PLATFORM 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 FEES PAID FOR NON-COMFORMING SERVICES. IN NO EVENT WILL 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.
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 JUST AS IF THEY WERE A PARTY.
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 have 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 Services Agreement for use of the Platform until terminated according to its terms. 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 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 by providing written notice to FINATIANIUM, and You 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 modified, then such provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect its original intent.
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 Florida, without giving effect to Florida’s 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 through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties within Duval County, Florida. 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 Duval County, Florida; (c) the ADR provider may award any form of relief legally available; (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; (e) YOU AND FINTAINIUM HEREBY WAIVE ANY RIGHT TO TRIAL (BY JUDGE OR JURY) AND AGREE TO ABIDE BY THE DISPUTE RESOLUTION MECHANISM OUTLINED 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:
12574 Flagler Center Blvd
Jacksonville, FL 32258
ATTN: General Counsel