Last Updated: April 12, 2019


IMPORTANT: PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING ANY SERVICES OR PRODUCTS OFFERED BY FUNCTIONIZE, INC. (“FUNCTIONIZE”). THESE TERMS OF SERVICE GOVERN ALL ACCESS AND USE OF FUNCTIONIZE’S PROPRIETARY HOSTED SERVICES. SUBMISSION OF AN ORDER AND/OR REGISTRATION INFORMATION TO OPEN AN ACCOUNT ON BEHALF OF AN INDIVIDUAL OR ENTITY (“CUSTOMER“) CONSTITUTES CUSTOMER’S ACCEPTANCE OF THESE TERMS OF SERVICE, AND THESE TERMS OF SERVICE ALONG WITH ANY SUBMITTED ORDERS (TOGETHER THE “AGREEMENT”) WILL APPLY TO ALL ACCESS AND USE OF HOSTED SERVICES THROUGH CUSTOMER’S ACCOUNT. IF CUSTOMER DOES NOT ACCEPT ALL OF THESE TERMS OF SERVICE OR THE INDIVIDUAL PLACING AN ORDER OR AGREEING TO THESE TERMS OF SERVICE DOES NOT HAVE AUTHORITY TO BIND CUSTOMER, THEN CUSTOMER MAY NOT ACCESS OR USE THE HOSTED SERVICES.

  1. DEFINITIONS.
    1. “Authorized Users” are those individuals who are Customer employees or contractors and who Customer authorizes to use the Hosted Services through Customer’s account.
    2. “Customer Data” means the data and information which Customer supplies to the Hosted Services.
    3. “Documentation” means the online user instructions and manuals made available by Functionize for use with the Hosted Services.
    4. “Fees” means the fees for the Hosted Services and other associated services set forth in an Order.
    5. “Hosted Services” means Functionize’s proprietary cloud-based software service, including all improvements, modifications, enhancements, analytics or derivative works of or included with the foregoing.
    6. “Materials” means information, content, Documentation or demo software relating to the Hosted Services that may be made available through Customer’s Account for the Hosted Services or on Functionize’s website.
    7. “Order” means the order form or quotation that incorporates this Agreement by reference and identifies the Hosted Services, and specifies the applicable Fees, subscription term and other restrictions or limitations.
    8. “Reports” means the reports generated by the Hosted Services based on processing the Customer Data.
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  3. USE OF THE HOSTED SERVICES.
    1. Authorized Use. Subject to the terms set forth in this Agreement, Functionize grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable license during the subscription term of the applicable Order to (i) access and use the Hosted Services for Customer’s internal business purposes relating to the testing and evaluation of Customer’s products and services as set forth in the applicable Order and subject to any additional restrictions or limitations that may be set forth in the applicable Order; and (ii) use and reproduce a reasonable number of copies of the Documentation in connection with Customer’s authorized use of the Hosted Services.
    2. Restrictions. Customer will not, and will not permit or authorize any Authorized User or other party to: (i) modify, disassemble, decompile or reverse engineer or attempt to derive the source code of the software or technology providing the Hosted Services (except as permitted by law); (ii) interfere with the operation or functionality of the Hosted Services; (iii) resell, distribute, sublicense, lease, transfer or share the Hosted Services with or for the benefit of any third party (unless expressly authorized in the applicable Order); (iv) remove, modify or otherwise tamper with notices or legends on the Hosted Services or Documentation; (v) attempt to probe, scan, penetrate, breach or test the vulnerability of the Hosted Services or disable or circumvent the Hosted Services’ security or authentication measures; (vi) use or access the Hosted Services for the purpose of building a competitive product or service; (vii) publicly disseminate performance information or analysis (including benchmarks) relating to the Hosted Services; or (viii) use the Hosted Services for any unlawful purpose or in a manner which violates or infringes any laws, rules, regulations, third party intellectual property or privacy rights.
    3. Access to Hosted Services; Accounts. Customer is responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other software or services needed to access the Hosted Services. To access and use the Hosted Services, Customer will be required to register for an account (“Account”) and manage access by Authorized Users. By creating an Account, Customer and its Authorized Users agree to: (i) provide accurate, current and complete Account information; (ii) maintain the security of any passwords and not share passwords with any other person; and (iii) immediately notify Functionize of any unauthorized use of Customer’s Account or any other breach of security in relation to the Hosted Services known to Customer. Customer is solely and entirely liable for all activities conducted through Customer’s Account and responsible for ensuring that all Authorized Users are aware of and comply with the terms and conditions of this Agreement.
    4. Customer Responsibilities. Customer manages and controls access to the Hosted Services and use and processing of the Customer Data by the Hosted Services, Customer agrees to abide by all applicable law and regulation regarding the collection, use and privacy of the Customer Data. Customer agrees to not use the Hosted Services to send Functionize any sensitive, personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information (including, but not limited to, financial, health, social security numbers or other government identification numbers, other information where unauthorized disclosure could cause material or severe harm or impact to Functionize or third parties). Additionally, Customer agrees that the Customer Data will be scanned using industry standard methods to protect it against viruses or programming routines intended to damage the Hosted Services or underlying technology, or surreptitiously intercept or expropriate any data or information.
    5. Third Party Services. Functionize may modify and update the features and functionality of the Hosted Services from time to time. Customer acknowledges that the Hosted Services may include features or functionality that interoperate with services operated by third parties (“Third-Party Services”) and Customer is responsible for ensuring that Customer’s use of the Hosted Services in connection with such Third-Party Services complies with any policies, terms and rules applicable to such Third-Party Services. Customer acknowledges such Third-Party Services may be modified, suspended or discontinued at any time by the third party provider, and that Functionize will not be liable to Customer for any such modification, suspension, or discontinuance.
    6. Evaluation Version. If Customer places an Order that designates Customer’s use of the Hosted Services shall be for evaluation purposes only (“Evaluation Version”), then Customer acknowledges and agrees that Customer will only access and use the Hosted Services solely for Customer’s internal evaluation purposes in a non-production, non-commercial environment and not for general production use, subject to any additional limitations or restrictions set forth in the applicable Order. Customer’s right to use such Evaluation Version shall be for the period of time set forth in the applicable Order (“Evaluation Period”) (including any extension of the Evaluation Period that may be expressly authorized by Functionize in writing or by issuance of subsequent Order). In addition and notwithstanding any other provision of these Terms of Service, Customer acknowledges and agrees that (i) the Evaluation Version of the Hosted Services is provided to Customer “AS-IS,” with no warranties of any kind; (ii) Functionize shall have no indemnification obligations for the Evaluation Version; (iii) Functionize may terminate immediately in the event Functionize has reasonably determined that Customer has committed a breach of Section 2; and (iv) for Evaluation Versions provided for to Customer for free, in addition to the termination rights under Section 6, either party may terminate the Evaluation Version license with or without cause effective ten (10) days after giving written notice of termination to the other party. Customer agrees to only provide simulation or historical Customer Data to the Evaluation Version of the Hosted Service, and no data related to current testing activities of Customer’s products or business. CUSTOMER ACKNOWLEDGES THAT ALL CUSTOMER DATA UPLOADED TO OR STORED IN THE EVALUATION VERSION OF THE HOSTED SERVICES DURING THE EVALUATION PERIOD WILL BE PERMANENTLY LOST IF CUSTOMER HAS NOT ENTERED INTO AN ORDER FOR THE COMMERCIAL VERSION OF THE HOSTED SERVICES WITH FUNCTIONIZE BEFORE EXPIRATION OF THE EVALUATION PERIOD. FUNCTIONIZE AND ITS LICENSORS AGGREGATE LIABILITY WITH RESPECT TO THE EVALUATION VERSION SHALL NOT EXCEED THE GREATER OF (I) FEES PAID BY CUSTOMER FOR SUCH EVALAUTION VERSION UNDER THE APPLICABLE ORDER OR (II) FIVE THOUSAND DOLLARS ($5,000).
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  5. PROPRIETARY RIGHTS.
    1. Hosted Services. All rights, title and interest (including all intellectual property rights) in and to the Hosted Services, Documentation and Materials and any improved, updated, modified or additional parts thereof, shall at all times remain the property of Functionize and its licensors. Functionize reserves all rights not expressly granted herein and there are no implied rights or licenses in this Agreement.
    2. Feedback. Customer may provide Functionize with feedback, including any flaws, errors, bugs, anomalies, problems with and/or suggestions relating to the Hosted Services (“Feedback”). Customer agrees that Functionize may, in its sole discretion, use the Feedback in any way and Customer hereby grants to Functionize a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without any obligations or restrictions.
    3. Customer Data. As between the parties, Customer owns and retain all rights to the Customer Data. Customer is solely responsible for the accuracy, quality, integrity and legality of the Customer Data. Customer grants to Functionize, a worldwide, limited term license to access, use, host, reproduce, modify, distribute and display the Customer Data for the purpose of providing the Hosted Services as set forth herein on behalf of Customer. Functionize may also use Customer Data on an aggregated and anonymous basis to improve and enhance Functionize’s systems, algorithms and service.
    4. Reports. As between the parties, Customer owns and retain all rights to the Reports. Notwithstanding the foregoing, Customer acknowledges that the Reports incorporate Customer’s proprietary format and templates and Customer agrees to only use, and reproduce the Reports for Customer’s internal business purposes, but not otherwise distribute or publicly display such Reports in whole in their original format.
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  7. FEES AND PAYMENT.
    1. Fees. Customer agrees to pay all Fees set forth in an Order. Except as otherwise provided in the applicable Order, all Fees are quoted in the United States currency. Fees are non-cancellable and once paid are non-refundable.
    2. Payments. Unless otherwise stated in the applicable Order, all Fees are due within thirty (30) days from the invoice date. Late payments on any undisputed amounts may be subject to interest charges of 1.0% per month (or the maximum permitted by law, whichever is lower) and the expenses associated with those collections. If Customer believes that the bill is incorrect, Customer must contact Functionize in writing within 60 days from the invoice date to be eligible to receive an adjustment or credit.
    3. Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Functionize’s income), and any related penalties and interest relating to the Fees paid under this Agreement. Customer will make all required payments to Functionize free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Functionize will be Customer’s sole responsibility, and Customer will, upon Functionize’s request, provide Functionize with official receipts issued by appropriate taxing authorities, or such other evidence as Functionize may reasonably request, to establish that such taxes have been paid.
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  9. CONFIDENTIALITY.
    1. Definition of Confidential Information.Confidential Information” means business or technical information, including product plans, designs, source code, finances, marketing plans, business opportunities, personnel, research, trade secrets, development or know-how of the disclosing party, the financial terms of this Agreement and any third party information that the disclosing party is obligated to keep confidential, that in each case is either marked or designated as “confidential” or “proprietary” or which, under the circumstances taken as a whole, reasonably should be understood to be confidential. The parties acknowledge and agree that the Hosted Services, and non-public Documentation and Materials are the Confidential Information of Functionize. Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis by a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (c) is developed independently by the receiving party without use of the disclosing party’s Confidential Information and by persons without access to such information.
    2. Nondisclosure Obligations. Neither party will use, disseminate or in any way disclose any Confidential Information of the other party to any person, firm or business. Each party shall treat all Confidential Information with the same degree of care as such party accords to its own confidential information but not less than reasonable care. Each party shall disclose Confidential Information only to its employees or representatives who have a need to know such information. Each party certifies that each such employee or representative will have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such party under this Agreement. Each party shall immediately give notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information. Each party shall assist the other party in remedying any such unauthorized use or disclosure of the other party’s Confidential Information. All Confidential Information shall be the property of the disclosing party and no license or other rights to Confidential Information is granted or implied hereby, except as otherwise expressly set forth in this Agreement.
    3. Exception. A disclosure of any Confidential Information by the receiving party (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party shall provide prompt prior written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
    4. Remedies. If a party breaches or threatens to breach the obligations of Section 5, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies.
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  11. Term and Termination.
    1. Term. This Agreement shall continue in full force and effect for the duration of the subscription term set forth in any active Order, unless earlier terminated in accordance with this Agreement. The subscription term specified in an Order will automatically renew for an additional term of twelve (12) months each unless and until either party provides the other with written notice of termination at least thirty (30) days in advance of the last day of the then-current subscription term.
    2. Suspension. Customer acknowledges and agrees that Functionize may suspend Customer’s Account for the Hosted Services in the event: (i) any payment is overdue after Functionize has provided at least ten (10) days’ written notice to Customer that such payment is past due, or (ii) immediately in the event Functionize has reasonably determined that Customer has committed a breach of Section 2 or is otherwise using the Hosted Services in a manner that threatens the security, integrity or availability of the Hosted Services.
    3. Breach. Either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
    4. Effect of Termination. Upon any termination of this Agreement: (i) Customer shall immediately cease the use of all of the Hosted Services; and (ii) each party shall return to the other party any other Confidential Information in its possession and/or control within fifteen (15) days after the effective date of such termination and upon request certify in writing that it has complied with its obligations hereunder. The provisions of Sections 3, 4, 5, 6.D, 7, 8, 9 and 10 of this Agreement shall survive any termination or expiration of this Agreement.
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  13. DISCLAIMER OF WARRANTIES. CUSTOMER AGREES THAT FUNCTIONIZE AND ITS LICENSORS PROVIDE THE HOSTED SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. FUNCTIONIZE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PERFORMANCE OF THE HOSTED SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND FUNCTIONIZE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, FUNCTIONIZE AND ITS LICENSORS DO NOT REPRESENT TO CUSTOMERS THAT (A) USE OF THE HOSTED SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR (B) USE OF THE HOSTED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
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  15. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM ANY ACT OR OMISSION BY SUCH PARTY UNDER THIS AGREEMENT AND THE APPLICABLE ORDER. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF EITHER PARTY AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE AUTHORIZED USE OF THE HOSTED SERVICES (REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), EXCEED THE AMOUNTS, IF ANY, THAT ARE PAID OR PAYABLE BY CUSTOMER TO FUNCTIONIZE FOR CUSTOMER’S USE OF THE HOSTED SERVICES UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM. NOTWITHSTANDING THE FOREGOING (I) NO LIMITATION OF LIABILITY SHALL APPLY IN CASE OF CLAIMS RESULTING FROM BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT AND/OR MISUSE OF THE OTHER PARTY’S TECHNOLOGY OR OTHER PROPRIETARY INFORMATION AND (II) EACH PARTY’S LIABILITY FOR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, TWO TIMES (2X) THE AMOUNTS THAT ARE PAID OR PAYABLE BY CUSTOMER TO FUNCTIONIZE FOR CUSTOMER’S USE OF THE HOSTED SERVICES UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRIOR TO FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO THE INDEMNIFICATION CLAIM. These exclusions are meant to apply to the fullest extent permitted by applicable law and regardless of the failure of any specific remedy.
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  17. INDEMNIFICATION.
    1. By Functionize. Functionize will indemnify, defend, and hold harmless Customer, and its respective subsidiaries, affiliates, officers, and Authorized Users from any third party claim or suit against Customer based on a claim that the technology used to provide the Hosted Services infringes any United States patent, copyright, trademark or trade secret and Functionize shall pay any final judgment entered against such Indemnitees in any such proceeding or agreed to in settlement. If Customer’s use of the Hosted Services is, or is likely, in Functionize’s reasonable determination, to be enjoined, Functionize may, without limiting its indemnity obligations hereunder, procure the right for Customer to continue to use the Hosted Services or modify the Hosted Services in a manner that has materially equivalent functionality so as to avoid such injunction. If the foregoing options are not available on commercially reasonable terms and conditions, Functionize may terminate the Agreement upon written notice and refund to Customer on a pro-rata basis all pre-paid Fees attributable to unused portion of the subscription term for the applicable Order. Functionize will not be responsible for any infringement claims to the extent they are based upon (i) the use of Customer Data, Third Party Applications or any other material of software not furnished by Functionize; (ii) Customer’s use of the Hosted Services outside the scope of the applicable Documentation or this Agreement; or (iii) any action or omission of Customer for which Customer is obligated to indemnify Functionize under Section 9.B below. THIS SECTION 9.A STATES FUNCTIONIZE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT AND MISAPPROPRIATION CLAIMS BASED ON THE HOSTED SERVICES.
    2. By Customer. Customer shall indemnify, defend, and hold harmless Functionize and its respective subsidiaries, affiliates, officers, licensors and suppliers from any third party claim or suit against Functionize based on a claim: (i) arising out of Customer’s use the Hosted Services for any unlawful purpose or in a manner in breach of Section 2 of this Agreement or which violates or infringes any laws, rules, regulations, third party intellectual property or privacy rights; or (ii) alleging that the access, use or provision of any Customer Data as permitted violates any applicable law, regulation or the proprietary rights of others when used by Functionize as permitted hereunder.
    3. Indemnification Procedure. The party seeking indemnity (“Indemnified Party“) will give the party from whom indemnity is sought (“Indemnifying Party“) timely written notice of the claim for which indemnity is sought and control of the disposition thereof; provided, that failure to give timely notice will not relieve the Indemnifying Party of its obligations except to the extent that such untimely notice materially impairs the Indemnifying Party’s ability to defend such claim. The Indemnified Party will cooperate with the Indemnifying Party’s reasonable requests (at the Indemnifying Party’s expense) in connection with the defense and settlement of such claim. Neither party will settle any claim for which indemnity is sought unless: (i) such settlement includes an unconditional release of the other party from all liability on the claim, or (ii) the other party gives its prior written consent, not to be unreasonably withheld.
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  19. GENERAL. This Agreement is not assignable or transferable, in whole or in part, by either party without the other party’s prior written consent; provided, however, either party may assign the Agreement to any of its corporate affiliates or to a successor as a result of merger, consolidation, acquisition or sale of all or substantially all of such party’s assets so long as the assignee agrees in writing to assume all obligations and liabilities of the assigning party hereunder. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, by certified or registered mail, return receipt requested or by electronic email transmission, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Hosted Services is in the state and federal courts located in the City and County of San Francisco, California, and Customer irrevocably agrees to submit to the jurisdiction of such courts. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement, together with any Orders, constitutes the parties’ entire understanding regarding the Hosted Services, and supersedes any and all other prior or contemporaneous agreements, whether written or oral, and the preprinted terms of any purchase order or similar document shall be void and of no force or effect.