Fleksy - Terms and Conditions
Last updated 21st of April 2022
These Terms and Conditions (“Terms”) and annexes hereto set out the terms and conditions governing use of the Fleksy Software SDK entered into as of the Effective Date by and between ThingThing Ltd. (“ThingThing” or “Licensor”), a UK company with offices at 7 Bell Yard, London, UK, WC2A 2JR (“Thingthing”) with company registration number 09691012; and the entity identified as “Licensee” on your Order Form (hereinafter also “Licensee” or “you”). Licensor and Licensee henceforth will be called individually a “Party” and collectively the “Parties”.
The Agreement between the Parties includes these Terms and the terms of your Order Form (which prevails over these Terms). The Agreement shall be interpreted solely in the context of such a Order Form and shall not bind either Party unless and until an Order Form is entered into by the Parties, at which time the terms of these Terms shall be automatically incorporated by reference into, and made a part of, that Order Form.
By clicking on the "I accept" button that is shown as a part of the access process for the first time, you (the “Licensee”) accept the terms of the Agreement.
If you accept this license in the name of a company or another legal entity, you represent and warrant that you have the authority required to bind that entity to these conditions, in which case the term "Licensee" shall refer to that entity. If you do not have this authority or do not accept these conditions, you must select the "cancel" button and you will not be able to use the Software.
1.Definitions
a) “Confidential Information” means any nonpublic information that one Party (the “Disclosing Party”) discloses to the other Party (the “Receiving Party”) before or during the term of this Agreement, including without limitation all information relating to the Disclosing Party's business and technologies. Confidential Information includes (i) the Software, (ii) any information regarding the content, purpose, design or function of the Software or (iii) any know-how, data or other information, including, that which relates to research, product plans, products, services, customers, markets, developments, inventions, processes, algorithms, Source Code, marketing or finances. Confidential Information excludes any information (a) that is generally known and available in the public domain at the time of disclosure without fault of Licensee, or (b) that was known to Licensee prior to its discussions with Thingthing, as shown by Licensee’s files and records immediately prior to the time of disclosure, or (c) that is hereafter rightfully furnished to Licensee by a third party without restrictions on disclosure and without breach of confidentiality restriction. The same provisions apply to information disclosed by Licensee to Thingthing.
b) “Documentation” shall mean all materials that describe the development, installation, use, functionality, operation, support, and maintenance associated with the Software, including without limitation manuals, specifications, training materials and technical documentation.
c) “Effective date” shall mean the date of acceptance of the Order Form.
d) “End-User”: a user of the Licensee’s keyboard technologies, that has activated a unique user ID to use the Software.
e) “Exhibit” shall mean any exhibit, attachment and/or schedule to this Agreement.
f) "Features” means the functionalities unilaterally developed and provided by ThingThing as part of the Software.
g) “Fees” means the fees set out in the Order Form for access and use of the Software
h) "Free plans” means any Thingthing plan to access and use the Software which does not require any payment in order to be subscribed to.
i) “Integrated Product” shall mean a technology product developed by the Licensee described in the Order Form that incorporates, embeds, interfaces with, links to or otherwise integrates the Software with or into the Licensee’s technology.
j) “Laws” shall mean all applicable foreign, federal, state and local laws, statutes, rules, and regulations, and all judicial, governmental, or administrative orders, judgments, decrees and rulings or other enforceable requirements of courts or other governmental bodies of competent jurisdiction.
k) “Net Active User” is and End-User who has used the Software during the relevant period, as evidenced by the Active User tracking function.
l) “Order Form” means (a) one or more mutually agreed order forms or similar transaction documents (online or offline) establishing the Licensee’s request for a license, including the chosen functionalities and payment plan, or (b) other order placed by you with ThingThing for your License (online or on paper) and any subsequent renewals.
m) “Paid plans” shall mean any Thingthing plan to access and use the Software that requires a payment in order to be subscribed to.
n) “Software” shall mean Thingthing’s proprietary software in object code and all related documentation having the functionalities specified in the Order Form. The Software licensed hereunder includes Updates published by Thingthing during the Term and provided to Licensee, but not Upgrades.
o) “Support and Maintenance Services” means the service to support the Licensee’s use of the Software and to maintain the Software as described in Exhibit A.
p) “Term” shall mean the term of this Agreement, set out in the Order Form.
q) “Updates” shall mean any corrections, enhancements, bug fixes or other modifications for the Software as they are made generally available by Thingthing to its customers.
r) “Upgrades” shall mean any new version, improvement or modification of the Software providing significant new functionality, for which a new license should be negotiated or shall be provided under custom development at the fees set out in the Order Form.
2.Plans and Features
1 Features. Pursuant to the Plan subscribed, and depending on the date of subscription, which is the Effective Data, Licensee will have access to specific Features during the term of the plan. These Features will be described in the Order Form. When a Plan is renewed, the list of available Features may be updated by ThingThing. ThingThing shall notify Licensee of any update in the Features list.
3.License
1 License Grant. Subject to the Licensee’s compliance with these Terms, Thingthing grants the Licensee for the Term a non-exclusive, nontransferable, worldwide right to (a) use and reproduce the Software (with the scope set out in the payment plan) to incorporate, embed, interface with, link to or otherwise integrate it for implementation with or into the Licensee’s technology to create the Licensee Integrated Product; (b) distribute and license the Integrated Products to Licensee’s end users as part of the Licensee’s product offerings; and (c) use and reproduce the Documentation for the Software as necessary or useful for the foregoing permitted purposes.
2 Developer License. In the event of taking a Developer License, Licensee is granted a royalty free, non-exclusive, nontransferable, worldwide right to use and reproduce the Software to incorporate, embed, interface with, link to or otherwise integrate it for testing with or in the Licensee’s technology to create the Licensee Integrated Product in a development environment; and to use and reproduce the Documentation as necessary or useful for the foregoing permitted purposes. Developer Licenses are limited to use of the Integrated Product in testing environment for free, and for the term set out below.
3 License Scope: License is granted for (a) the number of Licensee’s Active Users on a monthly basis, and (b) the Features to which the license gives access at the date of the subscription, and that are set out in Licensee’s Plan. Licensee may change its Plan at any time and increase/decrease these Features, against payment of the corresponding Fees if applicable. Non-purchased Features may be remotely disabled by ThingThing.
4 License Conditions: Distribution and use or making available Integrated Products embedding the Software and using specific Features is subject to ongoing due payment of corresponding Fees as set out herein. In the event of delay or non-payment of any such Fees, upon notice to the Licensee, the specific Features may be suspended, and no new Integrated Products may be distributed by the Licensee until the Licensee pays the corresponding fees and statutory interest thereon.
5 Usage tracing: ThingThing reserves the right (i) to track the number of Net Active Users through a tracking function, along with the Plan and Features they have access to, and (ii) in case of inconsistencies between the License granted and the number of Net Active Users or their usage of the Software, to take enforceable measures to impose the Licensee's compliance with the terms of this Agreement.
6 Prohibited Uses. Licensee shall not, and shall use reasonable efforts to ensure that other parties under Licensee’s control do not, except as expressly provided in Section 3a or in mandatorily applicable law:
i. use the Software for any use other than for the purposes set forth herein;
ii. except as expressly provided in Section 2(a), reproduce or distribute, in whole or in part, the Software;
iii. except as expressly provided in Section 2(a) or in mandatorily applicable law, modify, translate, reverse engineer, decompile, disassemble the Software, or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software or components thereof, including any such mechanism used to restrict or control the functionality of the Software, or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Software or any components thereof;
iv. except as expressly provided in Section 2(a) or in mandatorily applicable law, alter, adapt, modify or translate the Software in any way for any purpose, including error correction;
v. distribute, rent, loan, lease, transfer, use in a service bureau or grant any rights in the Software or modifications thereof in any form to any person except to the extent expressly permitted under this Agreement or with the prior written consent of Thingthing; nor
vi. file any patent or other applications for intellectual property protection with respect to the Software, or any information contained in either of the foregoing.
7 Licensee is solely responsible for End-User behaviour and shall incorporate the above prohibitions in its end user license. Any misappropriate behaviour from an End-User that constitutes a breach of these provisions while using the Software which the Licensee does not use all reasonable efforts to remedy shall constitute a breach of the Agreement by the Licensee.
4.Term and Termination
1 Term. The Agreement shall commence on the Effective Date, and shall continue in force for the Term, unless otherwise terminated as provided herein. At the end of any initial period indicated in the Order Form, the Agreement will be automatically renewed for successive periods indicated in the Order Form. After the initial term, either Party may terminate this Agreement, for any reason at any time, giving the other party a prior written notice of the duration set out in the Order Form prior to the termination taking effect.
2 Developer License Term. The Term of a Developer License is three (3) months. The Developer License is tacitly renewed for successive periods of three (3) months and unilaterally terminable on written notice by ThingThing for any or no reason.
3 Termination for Breach. Either Party may terminate this Agreement by written notice to the other party for breach of any material provision of this Agreement, provided that such breach, if reasonably susceptible to cure, is not cured within thirty (30) calendar days following receipt of written notice of such breach stating the nonbreaching party’s intent to terminate.
4 Effect of termination. Upon expiration or any termination of this Agreement, (i) any and all fees owed by Licensee to Thingthing shall become immediately due and payable, (ii) Licensee shall cease any and all use and/or distribution of the Software in devices, and (iii) each Party shall return to the other any and all Confidential Information in tangible form received from the Disclosing Party hereunder.
5 Wind Down Period. ThingThing agrees that, upon expiration or any termination of this Agreement other than for breach by Licensee, Licensee may elect (on written notice to ThingThing) to continue to provide the Software to users meeting the definition of End Users on or before such expiration or termination (“Wind Down Users”). If Licensee makes such election, the Parties will continue to meet their obligations hereunder with respect to such Wind Down Users (but no new End Users will be added) for a period equal to the remainder of the Wind Down Users’ then-current contracts (in the case of auto-renewing monthly contracts, this shall not be longer than thirty (30) days), but in no event longer than ninety (90) days (“Wind Down Period”).
6 Survival. The following provisions shall survive expiration or termination of this Agreement: Sections 1,, 4, 6, 7, 8 and 16.
5.Open Source
1 Warranty. Thingthing represents and warrants that the Software does not incorporate, link, distribute or use any third party software or code that would: (a) create or purport to create obligations with respect to Licensee devices, if any, including the distribution or disclosure of any source code used within any Licensee devices, or (b) grants or purports to grant to any third party any rights to or immunities under any Licensee (or any of its affiliate’s) intellectual property rights or proprietary rights
2 Non-incorporation by Licensee. Licensee shall not incorporate, link, distribute or use the Software with any code or software licensed under any third party or open-source license (including, any open source license listed on https://www.opensource.org/licenses/alphabetical) (each, an “Open Source License”) in any manner that could cause or could be interpreted or asserted to cause the Software to become subject to the terms of the Open Source License.
6.Intellectual Property Rights
1 Feedback. If Licensee provides Thingthing with any suggestions, ideas, feedback, improvements, reports, error identifications or other information related to the Software, or Licensee’s use and evaluation thereof (“Feedback”), Licensee hereby assigns to Thingthing all right, title and interest in and to all Feedback, including all patent rights, copyrights, trade secrets, and other intellectual property or proprietary rights therein, and agrees to use commercially reasonable efforts to assist Thingthing in perfecting such rights. Licensee hereby irrevocably assigns to Thingthing all such rights, title and interest and agrees to execute all documents necessary to implement and confirm the letter and intent of this Section.
2 Retention of Rights. The Software is owned by Thingthing and is protected by intellectual property Laws, including patent and copyright Laws, and international treaty provisions. This license is not a sale. Thingthing reserves all rights not expressly granted in this Agreement. Except for the rights and licenses expressly granted in this Agreement, Thingthing retains all of its right, title, and interest, including copyright, patent, trade secret, and all other intellectual property rights, in and to the Software, and any changes, modifications, corrections, improvements or new Features of any of the Software. Licensee shall not intentionally remove, alter, or obscure any proprietary copyright, trademark, patent or other proprietary notices contained on or within the Software and shall reproduce such notices on any back-up copy of the Software.
3 Documentation. Licensee may not copy any documentation or print copies of any user documentation provided in “online” or electronic form.
7.Privacy
1 Processor-controller relationship. Thingthing represents and warrants that it shall not have access to any personal data (including Personal Data as defined under the EU General Data Protection Regulation) of any end-user without obtaining the appropriate consent or other legal basis for such processing. Thingthing does not have any access as data processor to any personal data for which Licensee is data controller under applicable legislation; however, if Thingthing gains access to any personal data at a later date, Thingthing agrees to immediately notify Licensee. In the event such access is required, the Parties shall enter into an appropriate data protection addendum regulating the same in accordance with applicable law. In any event, Thingthing will not store, use, process, sell or otherwise disclose any personal information of the users of the Licensee’s devices without the explicit written consent of Licensee.
2 Controller-controller relationship. For the execution and monitoring of the present Contract, it is necessary to process the personal data of the signatories of the present Contract as well as those of the Licensee’s contact persons. These data include identification and contract data, such as name, surname, position, identity card, telephone and address. This data will not be transferred or shared with third parties, however, where appropriate and in the legitimate interest of the Parties, may be processed within the platforms of external service providers under contractual clauses that provide adequate guarantees for the processing of data, even if they are outside the European Economic Area. Such data shall be retained until the termination of this Agreement and, where applicable, blocked, for the prescribed periods of liability and for the period prescribed by law for legal or administrative reasons. The Parties declare that the data of the aforementioned persons are correct and that they are and will keep them up to date and undertake to inform such persons of the provisions of this clause.
3 Information of data subjects. In addition to the foregoing, the Parties inform and ensure to inform such persons of the possibility they have to exercise their rights of access, rectification, deletion, opposition, limitation of processing, portability, as well as not to be subject to profiles or automated decisions, by request addressed to the detailed addresses of the headings of the parties. All this without prejudice to your right to also file a complaint with the UK Information Commissioner.
8.Indemnification
1 Thingthing agrees to defend and or settle claims, suits, actions or proceedings brought by a third party against Licensee and its directors, employees, and agents to the extent alleging that the Software infringes such third party’s intellectual property rights or Thingthing has violated any applicable Laws, rules or regulations (“Claim(s)”), and shall pay liabilities awarded or settlement amounts entered into to the extent based upon such a Claim, provided that (i) Licensee shall have promptly provided Thingthing written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) Thingthing shall have sole control and authority with respect to the defense, settlement, or compromise thereof.
2 Should any software become or, in Thingthing’s opinion, be likely to become the subject of an injunction preventing its use as contemplated herein, Thingthing will either, (1) procure for the Licensee the right to continue using such software, (2) replace or modify such software so that it becomes non-infringing, or, if (1) and (2) are not reasonably available to Thingthing, then (3) terminate Licensee’s license to the allegedly infringing software. Licensee may participate with counsel of its own choosing at its own expense and further provided that any portion of any settlement or compromise which constitutes an admission from Licensee shall be subject to the prior written approval of Licensee.
9.Confidential Information
1 Non-disclosure. Each Party agrees not to disclose to third parties any Confidential Information of the other Party, other than professional advisers and consultants on a need-to-know basis nor use it for any other purpose than performance of the Agreement. Each Receiving Party agrees to ensure that all employees or advisers who will have access to, use of, or knowledge of the any Confidential Information are under statutory confidentiality obligations or have executed (in advance of and as a condition to such access, use or knowledge) a confidentiality agreement with the Receiving Party that is at least as protective of such information as the provisions of this Section. Licensee agrees to use at least the same degree of care that it uses to protect its own confidential information of a similar nature, but no less than reasonable care.
2 Data confidentiality. The Software includes data management Features, such as a Data Layer, that collects technical usage data from the Software, that the Licensee may access to provide value added services in this Integrated Product either on or off the mobile device. The Licensee is solely responsible for any access or use of this data.
10.Fees
1 Fees. In consideration of the rights and licenses set forth herein, Licensee shall promptly pay to Thingthing the fees set forth in the Order Form. Developer Licenses are for free. Payments are established in payment plans identified in the Order Form and may have a fixed amount and a variable amount per Net Active User.
2 Net Active Users. The Software automatically tracks End-User activation and sends to the Licensor a unique license ID code (using random device identification) which permits to identify active use of the Software (but not the user) during a given period (monthly). Licensor accumulates the net number of Active Users during the months and creates a monthly report. Thingthing shall detail to Licensee in the monthly invoices the variable amounts based on the Active User tracking report.
3 Payment obligations audit. Thingthing may audit, itself or through an independent auditor, the Licensee’s compliance of this Agreement and in particular the distribution of devices and payment obligations in accordance with the Order Form, as described in Section 13. All audit information shall be considered Confidential Information and only used for this purpose.
4 Payments shall be made within the period and in the manner established in the Order Form. Late payments shall bear a late payment fee in an amount equal to the lesser of one-and-one-half percent (1.5%) monthly, or the maximum amount permitted by law.
5 Taxes. All payments required by this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments. Licensee agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed upon Licensee or Thingthing in connection with this Agreement, excluding any income tax imposed on Thingthing and shall promptly after payment provide the corresponding tax certificate (when available) to Thingthing.
11.Support
1 Support and Maintenance Services. Thingthing shall provide Support and Maintenance Services for the Software in accordance with the terms set forth in Exhibit A. Upon the Licensee’s request for any non-corrective maintenance support or development services not included in Exhibit A, the Parties shall enter into a specific statement of work.
2 Support conditions. The provision of Support and Maintenance Services may require that the Licensee has downloaded and integrated the latest Upgrade. When it is the case, ThingThing may, at its own discretion, decide that the provision of the Support and Maintenance Services are subject to the installation of the latest Upgrade.
12.Trademark/Quality Control; Publicity
1 Whenever the Licensee expressly uses Thingthing’s logo or trademarks, Licensee shall provide attribution to Thingthing on any and all devices and the Licensee website. Such attribution shall consist of Thingthing’s trademarked ‘powered by’ logo as specified in Exhibit C on the user interface and documentation and Licensee website (the location of which logo will be determined by Licensee). During the Term, Thingthing shall have the option to waive its right to attribution and require Licensee to remove or modify all Thingthing mention and marks from any or all products or services. Removal of all information shall be completed within thirty (30) days after such notice.
2 Thingthing may use the name and logo of the Licensee in PR and on its website and promotional materials for the purpose of advertising the use of the Thingthing Software in devices. The parties agree to issue a mutually agreed upon joint press release announcing the inclusion of the Software in the devices within ten (10) days of the commercial deployment of the devices.
13.Audit
1 In case Licensee does not comply with the reporting provisions of this Agreement or in case Thingthing has reasonable doubts about the accuracy of the reported quantities, upon reasonable notice to Licensee (at least 10 days’ prior) and during Licensee's business hours, Thingthing shall have the right to assign an auditor to audit, at Thingthing's expense, the use of Software in Licensee's possession, and Licensee's books, equipment and records relating to performance of this Agreement, to determine its compliance hereunder for purposes of calculating the fees owed hereunder. Thingthing may perform such audit one time per year and will be responsible for the costs and expenses associated with such audit, unless in the event that any such audit reveals that Licensee has breached a material obligation hereunder, then, in addition to such other remedies as Thingthing may have, Licensee shall pay or reimburse Thingthing for the cost of the audit. Thingthing has no rights to access or view information that would disclose the names or addresses of Licensee’s customers.
14.Warranties
1 Authority. Each Party represents and warrants to the other that the execution, delivery and performance of this Agreement does not require the authorization or approval of any third party and does not violate any contract, policy, agreement or other obligation of that Party.
2 Compliance. Licensee represents and warrants to Thingthing that all access and use by or on behalf of Licensee of the Software shall comply with all applicable Laws.
3 Thingthing warranties. Thingthing represents and warrants to Licensee that: (i) it has all of the rights or licenses, from each applicable licensor, that are sufficient to provide the licenses, rights or other covenants as stated under this Agreement to the Licensee, (ii) it is in compliance with and will comply with all applicable Laws, (iii) the Software will operate and perform in accordance with the documentation and this Agreement, and (iv) there is no Harmful Code in the Software. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose of which is to maliciously permit unauthorized access to, or to destroy, disrupt, disable, or distort in any manner any: (1) computer, software, firmware, hardware, system or network or (2) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
4 Disclaimer of Other Warranties. Except as expressly set forth herein, the product is provided “as is.” Thingthing makes no warranty regarding the product (or any accompanying documentation), or the use or operation thereof, and specifically disclaims the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
15.Limitation of Liability
1 Except for breach of confidentiality and/or intellectual property rights provisions, in no event will Thingthing or Licensee be liable for any indirect damages for loss of business profits, business interruption, loss of system availability, loss of computer run time, loss of business information, cost of cover or other special, incidental, consequential, or indirect damages, arising out of the use or inability to use the product (or any accompanying documentation) whether based on contract, tort (including negligence) or otherwise and even if the relevant party has been advised of the possibility of such damages.
2 Licensee agrees that it shall have the sole responsibility for protecting its data and its product, by periodic backup or otherwise, used in connection with the product.
3 Excluding either party’s violations of law, negligence or willful misconduct, or breach of confidentiality or intellectual property provisions and Thingthing’s indemnification obligations herein, in no event will either party's total liability to the other party for any damages exceed the amount paid by Licensee to Thingthing hereunder.
a. The parties acknowledge that this is a reasonable allocation of risk.
16.Miscellaneous
1 Governing Law. This Agreement shall be governed by the laws of England and Wales, United Kingdom, without reference to conflict of laws principles.
2 Jurisdiction. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the High Courts of England and Wales, and the Parties consent to the personal and exclusive jurisdiction of these courts.
3 Assignment. Neither Party may assign this Agreement without the other party’s prior written consent, provided, however, that either party may assign this Agreement without the other Party’s prior written consent to any entity that acquires all or substantially all of the business or assets of Thingthing, whether by merger, reorganization, acquisition, sale or otherwise. Any assignment made in conflict with this provision shall be void and this Agreement shall benefit and bind the permitted successors and assigns of the parties.
4 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered in person, mailed by first class mail, postage prepaid (registered or certified), or by overnight courier, or sent by email (provided confirmation of receipt) with confirming copy sent by mail or courier as set forth above, to the party to receive the notice at the address set forth at the beginning of this Agreement or such other address as either party may specify in writing in accordance with this Section. All such notices shall be effective upon receipt.
5 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, failures of the Internet, failure of telecommunications systems, earthquakes, fire and explosions.
6 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
7 Severability. If any provision of this Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties shall negotiate in good faith amendments to this Agreement to reflect the original intent of the parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
8 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
9 Interpretation. Section headings are for ease of reference only and do not form part of this Agreement. All words used in this Agreement will be construed to be of such number and gender as the context requires or permits. Unless a particular context clearly provides otherwise (a) the words “hereof” and “hereunder” and similar references refer to this Agreement in its entirety and not to any specific Article, Section or subsection hereof, and (b) the word “including” will mean including but not limited to. The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement or any other agreements or documents delivered in connection with the transactions contemplated by this Agreement.
10 Entire Agreement. This Agreement (including the Exhibits and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.
11 Independent Contractors. The Parties are independent contractors in their performance under this Agreement, and nothing contained in this Agreement shall be deemed to constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
12 Modifications. This Agreement may be unilaterally modified by Thingthing from time to time. When such modification occurs, Thingthing will inform Licensee.
End of Terms
Exhibit A
Maintenance and Support
This Standard Maintenance and Support Exhibit (the “Exhibit”) is appended to and made a part of the Agreement between Thingthing and Licensee and is subject to the terms and conditions thereof.
The provision of Support and Maintenance Services may require that the Licensee has downloaded and integrated the latest Upgrade. When it is the case, ThingThing may, at its own discretion, decide that the provision of the Support and Maintenance Services are subject to the installation of the latest Upgrade.
Support for Developer Licensees is at ThingThing’s discretion.
1.Definitions
“Maintenance Patch/Update”: A release of or for a Supported Software that includes the most recent Resolutions.
“Resolution”: Either a Software modification or addition that, when made or added to the Supported Software, corrects a Supported Incident; or a work-around, procedure or routine that, when observed in the regular installation or operation of the Software, eliminates the practical adverse effect of such Supported Incident on Licensee and Device users; or replacement of the Supported Software (Resolutions may include patches and bug fixes).
“Supported Incidents”: A material defect in materials and workmanship of the Supported Software, or failure of the Supported Software to conform to the specifications set forth in the documentation (“Documentation”) relating to that version of the Supported Software, resulting in the inability to use, or restriction in the use of, the Supported Software.
“Supported Software”: Thingthing Software as defined in Order Form. Support for Software integrated in the Licensee devices is limited to core code and the immediately prior version of the Software for a period of six months after the prior version has been superseded by the current version.
“Update”: A revision or change of version of the Supported Software, made generally available by Thingthing to its customers generally, during the term of the Agreement. A version change may include new and different functionality or an increase in the capacity of the current Software. An Update does not include new versions of the Software with significant new functionality, or different products or services or additional third-party components or modules, which may be priced separately.
2.Service Description and Scope
A. Scope of Maintenance Services. The scope of Maintenance Services includes the provision of Resolutions, Maintenance Patches, and Updates in relation to the Supported Software during the Support Period, as set forth below.
B. Scope of Support Services. The scope of Support Services includes the following three services:
1. Level 1 (all Plans) : Community Forum support (Level 1) :
2. Level 2 (Paid Plans only): Email / ticketing support (support@fleksy.com) with regard to installation, configuration of the Thingthing Software.
3. Uploading of new updates to the Software to the applicable Application Stores.
Support Services do not include development, consulting or technical training. Any additional tasks derived from the ticket beyond knowledge transmission, and not specified hereunder, such as development, documentation, specific testing or remote access will be charged on an hourly basis unless otherwise agreed in writing by the parties. The Support Services and Maintenance Services are collectively referred to as the “Services.”
C. Service Modification. Modifications to the scope of the Maintenance Services and/or Support Services may be made from time to time by Thingthing and will be notified to Licensee in writing; provided that the Maintenance Services and/or Support Services will not be materially decreased.
D. Exclusion from Services. Thingthing is not obligated to provide Maintenance Services and/or Support Services in the following situations:
· Integration with Licensee new interfaces or other technologies (other than as agreed in a Service Order)
· Improper installation or operation of the Supported Software not in accordance with Thingthing’s specifications or the Documentation;
· The Supported Software has been damaged or the Supported Incident is caused by Licensee’s negligence, or other causes beyond the reasonable control of Thingthing;
· The Supported Incident is caused by third party hardware or software not sold or licensed by or through Thingthing;
· Licensee has not installed and implemented a Maintenance Patch/Update so that the Software is not a release supported by Thingthing;
Such issues may be addressed separately upon request to Thingthing at the applicable hourly rates for consulting.
3.Maintenance Service and Support Service Period
The Maintenance Service and/or Support Service period begins on the date of initial delivery of the Supported Software in accordance with the Agreement and has a duration the Agreement.
4.Means of Providing The Maintenance and Support Services
Thingthing will provide the Services by remote assistance. Requests for Level 2-Services must be made to Thingthing by sending an email to support@fleksy.com. In response to requests, support technicians will respond via email or phone.
5.Response Criteria
ThingThing’s initial response may result in Resolution of the request or form the basis for determining what additional actions may be required to achieve Resolution. Thingthing will use commercially reasonable efforts to respond within the next business day. Thingthing is not responsible for delays in response delivery caused by systems and network problems.
6.Maintenance Patches and Updates
In addition to Resolutions, during the term of this Exhibit, Thingthing shall make Maintenance Patches and Updates (Level 3 Services, including security patches) available if and when made generally available by Thingthing. If a question arises as to whether a product offering is an Update, or an Upgrade or separate component, Thingthing’s determination will prevail, provided that Thingthing treats the product offering as a new product or Feature for its End-User generally.
7.Licensee Responsibilities
Licensee agrees to:
· Ensure that any access codes Thingthing provides are used only by Licensee’s authorized personnel and contractor’s who perform services on Licensee’s behalf;
· Designate a technically qualified representative (a “Primary Technical Contact”) to be the focal point to whom Thingthing may direct general technical information pertaining to Supported Software. Licensee’s Primary Technical Contact and each caller must have sufficient technical knowledge of Licensee’s Supported Software environment to enable effective communication with the Thingthing support center;
· Provide Thingthing with all relevant and available diagnostic information (including product or system information) pertaining to Software problems for which Licensee requests assistance;
· Provide Thingthing with appropriate remote access to Licensee’s system if necessary to assist in isolating the Software problem cause. Licensee will remain responsible for adequately protecting the system and all data contained therein whenever it is remotely accessed by Thingthing with Licensee’s permission, however Thingthing will be responsible for any damages to Licensee’s systems and data caused by the acts or omissions of Thingthing;
· Use the information obtained under these Services only for the support of the information processing requirements within Licensee’s enterprise;
· Ensure that Services are used only in relation to duly licensed Supported Software;
· Make reasonable efforts to correct any issue and deploy corrections after consulting with Thingthing;
· Promptly ensure that all Maintenance Patches and Resolutions are implemented and distributed to End Users; and
· Maintain a backup of all its configuration data (as described in the Documentation).
8.Charges and Payment
Free Plans include Level 1 and 3 Support Services.
Paid Plans include Fees for Level 1, 2 and 3 Support Services.
Any additional tasks derived from the Services beyond knowledge transmission, and not specified under Section 2, such as development, documentation, specific testing, etc., will be charged at Thingthing’s professional services rates.