Terms of service
Terms of service
At featureflow we are very serious about providing a fantastic, highly responsive and highly available service to you and your business. Use of featureflow, the SDK, the admin web site, software and any other services we offer (‘Services‘) are subject to the following conditions Terms of Service (‘Terms‘), please read them carefully.
These terms were last revised on the 24th of November 2017.
By signing up, clicking accept, executing a form that references this agreement or by using or downloading the featureflow service or software in any manner, you, or the customer agree to be bound by the terms of this agreement (together with all order forms, the ‘agreement’). You represent and warrant that you have the authority to enter into this agreement; if you are entering into this agreement on behalf of an organisation or entity, references to ‘customer’ and ‘you’ in this agreement refer to that organisation or entity.
Customers may not use the featureflow service without agreeing to this service first. If a written agreement exists and has been executed between featureflow and the customer then the terms in that written agreement shall take precedence over this agreement. If the terms of this agreement are considered an offer, acceptance is expressly limited to such terms.
1. Terms and scope of Service for featureflow.
1.1 Terms of service. featureflow shall make the featureflow Service available to the Customer and its Affiliates in accordance with this Agreement, and each order mutually entered into. Subject to the terms of this Agreement, featureflow grants the Customer and its Affiliates a world-wide, fully-paid, royalty-free, limited term, non-sublicensable, non-transferable, and non-exclusive license to access, use, and download (for the SDK or featureflow software only) the featureflow Service solely for internal business purposes only for the period specified in the service order. The license granted hereunder is limited to the maximum number of Users, End Users or other limits specified in each Order Form and agrement and is subject to any additional terms and conditions specified on the Order Form. Any third party component embedded, included or provided by featureflow for use with the featureflow Service may only be used in conjunction with the featureflow Service, and such use is subject to this Agreement.
1.2 Trial usage. If the customer is making use of the service on a trial basis or a no-fee basis (‘trial’), Customer acknowledges and agrees that the Trial is provided on an “as-is” basis, and provided without any indemnification, support, or warranties or representation of any kind. Additionally the rial may be subject to additional limitations which may change at featureflow’s sole discretion.
2. Customer responsibilities and restrictions
2.1 Customer equipment. The Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the featureflow Service.
2.2 Law. Customer agrees to use the featureflow Service in accordance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make the featureflow Service available to any third party other than as contemplated or allowed by this Agreement; or (b) use the featureflow Service to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
2.3 Usage. The Customer agrees to not (a) remove or otherwise any proprietary notices or labels from the Service; (b) modify, copy or create derivative works of the featureflow Service; (c) reverse engineer the featureflow Service; (d) access the featureflow Service for the purpose of building a competitive product or service; (e) use the featureflow Service, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without featureflow’s prior written consent; or (f) provide access to the featureflow Service to a known direct competitor of featureflow.
2.4 SDKs. The SDK’s are subject to the licenses as indicated in the respective source code notices.
2.5 Service suspension. This agreement and the service orders hereunder may be terminated: (a) by either party if the other has materially breached this agreement, within (5) business days after written notice of such a breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable; or (b) by featureflow upon written notice to the customer. Featureflow reserves the right to throttle or suspend the service if featureflow reasonably determines that the customer is using the service in excess of the volumes intended and agreed by featureflow and the subscribed plan, or if usage overloads the service. (c) immediately if featureflow reasonably believes that Customers use of the Service may pose a security risk to or adversely impact the service; (d) immediately if the Customer becomes insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding; or (d) Customer has failed to pay Split the Fees with respect to the Service. If any amount owing by Customer is thirty (30) or more days overdue (or 10 or more days overdue in the case of invoices to be paid by credit card), featureflow may, without limiting any rights and remedies, accelerate Customer’s unpaid fee obligations to become immediately due and payable, and suspend the provision of the Service to Customer until the overdue amounts are paid in full. featureflow will give Customer at least ten (10) days’ prior notice that its account is overdue before suspending services due to overdue amounts.
3.1 featureflow rights. featureflow shall retain all ownership rights, title and interest in and to the featureflow Service and all and any other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other intellectual property related to the featureflow Service and all work developed or created by featureflow during the course of providing support of the featureflow Service to the Customer in each to the extent not constituting Customer Information (as defined below).
3.2 Customer rights. Customer shall have or retain all ownership rights in the Customer Data and all data, text, files, data, output, programs, files, information, or other information material that Customer or its Affiliates provides, develops, generates, creates, makes available or uses in conjunction with the featureflow Service (collectively, “Customer Information’). As applicable, featureflow hereby assigns and will assign all Customer Information to Customer. No license, right or interest in any featureflow or Customer trademark, copyright, trade name or service mark is granted hereunder.
3.2 feedback and suggestions. featureflow shall own any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the featureflow Service. Feedback, even if designated as confidential by the Customer shall not create a confidentiality obligation for featureflow notwithstanding anything else. nothing in this agreement will impair featureflow’s right to develop, acquire, license market of distribute products or technologies that Customer may develop, product, market or distribute.
4.1 fees. Unless otherwise specified on an Order Form, the Fees (if any) shall be as stated in each Order and shall be payable in advance. In the event Customer issues purchase orders in its normal course of business, Customer shall provide featureflow with a purchase order within five (5) days of the Effective Date, or if Customer does not provide featureflow with such purchase order, Customer authorises featureflow to accept this Agreement in lieu of a purchase order. In the event Customer is paying by credit card as indicated in an Order Form, Customer acknowledges that featureflow uses a third-party for the processing of such payments and that featureflow’s credit card processor will have access to certain information provided by Customer as a result.
4.2 due dates. For payments made by credit card, Customer’s credit card will be charged at the time the Order Form is placed and thereafter, at the frequency listed in the Order Form, which will continue until this Agreement is terminated. For all other payment methods, fees shall be due and payable within thirty (30) days of receipt of invoice. Any payment not received from Customer by the due date may result in suspension of Customer’s ability to access the featureflow Service until payment is made, provided that featureflow notifies Customer in writing of the delinquency and such delinquency is not corrected within ten (10) business days.
4.3 taxes. Unless otherwise provided, featureflow’s fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on featureflow’s net income, employees, or property. If featureflow has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorised by the appropriate taxing authority.
4.4 usage. The license granted hereunder is limited to the maximum number of Users licensed (where applicable) and any additional terms and conditions specified on an Order Form. In the event Customer exceeds such usage, featureflow may charge Customer for such excess usage.
5. Representations and warranties
5.1 Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement. Customer warrants that it has the rights to provide and use any and all Customer Data in accordance with the terms of the Agreement and the foregoing and its performance hereunder doesn’t violate any laws.
5.2 THE CUSTOMER ACKNOWLEDGES THAT, EXCEPT AST EXPRESSLY PROVIDED IN SECTION 6.1, FEATUREFLOW NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF A THIRD-PARTY RIGHTS. FEATUREFLOW DOES NOT WARRANT THAT THE FEATUREFLOW SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
6. Indeminification by Customer
Customer will defend, indemnify and hold featureflow its Affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any loss, damage or costs (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) Customer Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data.
7.1 definition. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally, digitally or in writing, that is designated as confidential including the terms and conditions of this Agreement, Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. This agreement is confidential information and all pricing terms are featureflow confidential information.
7.2 exclusions. The obligations of this section shall not apply to any information not deemed confidential, defined as information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party.
7.3 disclosure Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). featureflow represents and warrants that it will maintain the confidentiality of Customer Data and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the featureflow Service and to otherwise improve the featureflow Service.
7.4 Aggregate data. featureflow may compile aggregate data related to Customer’ s usage of the featureflow Service and may use and/or disclose such aggregate data to third parties, to the extent that Customer is not identified as the source of such data that the data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual.
7.5 terminiation and survival. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, destroy (at the Disclosing Party’s election) all Confidential Information.
8. Limitation of liability
8.1 IN NO EVENT SHALL FEATUREFLOW BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. FEATUREFLOW’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE CLAIM.
8.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Term and termination
9.1 Term. The term of this Agreement commences on the Effective Date and continues until all Order Forms entered into under this Agreement have expired (the “Term”) or been terminated unless terminated earlier in accordance with section 10. The Initial Term applicable to each Order Form commences upon Customer’s execution of such Order Form and upon expiration of the Initial Term, the featureflow Service subscription term applicable to such Order Form shall continue to renew for Extension Terms equal to the term of the most recent Term, unless either party gives notice to the other party of its desire to not renew at least thirty (30) days prior to the end of the then- current Term.
9.2 Termination. This Agreement and the Service Orders hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, upon thirty (30) calendar days written notice to the other party of such breach if the breach is remediable or immediately upon notice if the breach is not remediable; or (b) by featureflow upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) has effected a compulsory or voluntary liquidation or dissolution, or (iv) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction.
10.1 Either party may include the other’s name or logo in customer or vendor lists in accordance with the other’s standard guidelines. In addition, featureflow may refer to Customer’s intended use of the featureflow Service in its marketing materials and on its websites as well as in discussions with featureflow customers, prospective customers, and industry and financial analysts.
10.2 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
10.3 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications failure which (i) hinders, delays or prevents a party in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, such party, or (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event).
10.4 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either party may assign this Agreement in its entirety (including all Order Forms hereunder), upon written notice to the other party, to an Affiliate or, to its successor in interest resulting from a merger, reorganisation, or sale of all or substantially all assets or equity not involving a direct competitor of the other party and (ii) featureflow may use subcontractors in the ordinary course of business. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.