terms-of-service

Terms of Use & Conditions.

Last updated 19th March, 2025

If an executed agreement exists between the legal entity on whose behalf you’re accessing the Services and Software (as defined by the Factorise ITSA and Factorise EULA below). Factorise or a Factorise authorized distributor/reseller, at any time regarding the Software and/or Services, the terms of that agreement shall supersede these Terms of Use & Conditions in its entirety, except that the Factorise Privacy Policy shall continue to govern the use of data submitted by you during the registration process for the Software and/or Services.

By using Factorise’s products and (online) services and/or software, You signify and agree to be bound by these Terms of Use and Conditions, unless an executed agreement already exists as stated above. Conditions of purchase or other conditions of You and/or third parties or additions to or deviations from these Terms of Use & Conditions shall only apply when explicitly agreed in writing between the Parties. These Terms of Use & Conditions apply to all Services and Software of Factorise and all Services included therein.

If You are entering into these Terms of Use & Conditions on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these Terms of Use & Conditions or any other terms and conditions, in which case the terms “You” or “Your” or “Licensee” or “Customer” shall refer to such entity.

For reference, Factorise applies an EULA for its Software and an ITSA for its services. Both Terms of Use and Conditions are outlined below. 

Factorise Software End User License Agreement.

This Factorise Software End User License Agreement (this “Agreement”), including the Order Form (defined below), which is incorporated herein by reference and which shall be treated as part hereof, is a binding agreement between Factorise BV, Stationsplein 45,  unit 1130.14, 3013AK, Rotterdam in The Netherlands (“Factorise”) and the person or entity (“Licensee”) identified on the Order Form as the licensee of the software identified on the Order Form (“Software”).  This Agreement shall be effective (“Effective Date”) as of issuance by Factorise of written notice (“Grant Notice”) to Licensee of acceptance of the Order Form and grant of a license to the Software pursuant to the terms of this Agreement. 

FACTORISE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THE ORDER FORM LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE SHALL BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) LICENSEE IS OF LEGAL AGE AND IS OTHERWISE COMPETENT TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THE PERSON SUBMITTING THE ORDER FORM ON LICENSEE’S BEHALF HAS THE RIGHT, POWER, AND AUTHORITY TO BIND LICENSEE TO ITS TERMS; AND (III) LICENSEE IS UNDER NO OBLIGATION TO THIRD PARTIES WHICH WOULD CONFLICT WITH OR OTHERWISE IMPEDE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, FACTORISE WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) TO ANY SOFTWARE OR DOCUMENTATION ACCESS TO WHICH LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF FACTORISE’S SOFTWARE.

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Authorized Users” means solely those individuals identified on the Order Form who are authorized to use the Software pursuant to the license granted under this Agreement on Licensee’s behalf.

“Core Platform” means the base Factorise software application and components, excluding any software, configurations, customizations, or other materials developed or customized specifically for a particular Customer. The Core Platform includes Factorise platform software and modules required to support Customer implementations, but excludes any Customer-specific code or configurations

“Customer Data” refers to any data, information, content, records, and files that a customer (Licensee) loads, transmits to, or enters into the Software, including data that the Software processes on behalf of the Licensee

“Documentation” means user manuals, technical manuals, and any other materials provided to Licensee by Factorise, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Licensee” has the meaning set forth in the preamble.

“License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.

“Factorise” has the meaning set forth in the preamble.

“Order Form” means the document, regardless of whether in electronic, “hardcopy” or other format, submitted to Factorise by or on behalf of Licensee to acquire a license for downloadable or online use of the Software pursuant to the terms of this Agreement. This document can be a SOW, Statement of Work, as well.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Software” means the software programs, such as the Factorise platform, web and mobile applications, templates, APIs, modules, connectors, identified in the Order Form for which Licensee is acquiring a license.

“Term” has the meaning set forth in Section 10.

“Third Party” means any Person other than Licensee or Factorise.

“Update” has the meaning set forth in Section 6(b).

  1. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Factorise hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

(A) For licenses specified on the Order Form as being for downloadable use of the Software:

  1. install in accordance with the Documentation one (1) copy of the Software on each of the designated computers owned or leased, and controlled by, Licensee. Unless the Order Form expressly states that Licensee is purchasing a network license, each such computer shall be for a single Authorized User. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and a reasonable number of copies of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Licensee:

– will be the exclusive property of the Factorise;

– will be subject to the terms and conditions of this Agreement; and

– must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

  1. Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
  2. Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be installed in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:

– will be the exclusive property of Factorise;

– will be subject to the terms and conditions of this Agreement; and

– must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

(B)    For licenses specified on the Order Form as being for online use of the Software:

  1. Access the Software and Documentation via the Internet via a web browser, solely by use of an authorized account name and password assigned to the Authorized User.
  2. Use and run the Software in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
  3. Third-Party Materials.

(a) The Software includes software, content, data, or other materials, including related documentation, that are owned by Persons other than Factorise and that are provided on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses can be found in Factorise documentation and/or order form and the applicable Third-Party Licenses, such as the Mendix platform, are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

(b) Customer Customizations. The Software includes software, content or other materials created or customized by the Customer and provided to Factorise solely for use as described in this Agreement (“Customer Customizations”). Title and ownership of any intellectual property rights in Customer Customizations shall vest solely in the Customer. Customer hereby grants to Factorise a limited license to access and use Customer Customizations internally as necessary to provide the Software and related support services to Customer. Any Customer Customizations must not violate the licensing terms for Factorise’s Software platform.

  1. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 3;

(b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

(g) except as expressly set forth in Section 3(A), copy the Software or Documentation, in whole or in part;

(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

(i) use the Software or Documentation in violation of any law, regulation, or rule; or

(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Factorise’ commercial disadvantage.

  1. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
  2. Maintenance and Support.

(a)    Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Factorise makes generally available to all licensees of the Software then entitled to maintenance and support services. Factorise may develop and provide Updates in its sole discretion, and Licensee agrees that Factorise has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Factorise may provide some or all Updates via download from a website designated by Factorise and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Factorise has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Factorise may issue as a separate or new product, and Factorise may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

(b)    Factorise reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Factorise has no obligation to provide maintenance and support services, including Updates:

  • for any but the most current or immediately preceding version or release of the Software;
  • for any copy of Software for which all previously issued Updates have not been installed;
  • if Licensee is in breach under this Agreement; or
  • for any Software that has been modified other than by or with the authorization of Factorise, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Factorise in writing.

(c) The terms of this Section 7 are applicable to only licenses specified on the Order Form as being for downloadable use of the Software.

(d)    Depending on the type of purchased and activated software, i.e., the Factorise platform or Factorise applications and templates, separate Maintenance and support models and requirements may exist. The order form and/or SOW will lead which maintenance, support services, and service level agreements are applicable.

  1. Collection and Use of Information.

(a)    Licensee acknowledges that Factorise may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services.

(b)   Licensee agrees that the Factorise may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

  • improving the performance of the Software or developing Updates; and
  • verifying Licensee’s compliance with the terms of this Agreement and enforcing the Factorise’ rights, including all Intellectual Property Rights in and to the Software. More specifically, through its Software, Factorise collects the following information, using and sharing it with others as detailed below.  You can read more about this and your rights with respect to the collected information in our Privacy Statement
  1. Intellectual Property Rights.

(a) Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Factorise reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Factorise if Licensee becomes aware of any infringement of the Factorise’ Intellectual Property Rights in the Software and fully cooperate with Factorise in any legal action taken by Factorise to enforce its Intellectual Property Rights.

(b) Treatment of Customer Customizations. Any software, content or other materials developed or customized by the Customer in accordance with this Agreement (“Customer Customizations”) shall remain the sole and exclusive property and intellectual property of the Customer. Customer hereby grants to Factorise a limited, worldwide, royalty-free license to access and use Customer Customizations internally as necessary to provide the Software and related support services to Customer in accordance with this Agreement.

  1. Payment. All License Fees and Support Fees are payable in advance in the manner set forth in the Order Form and are non-refundable. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
  2. Term and Termination.

(a)    This Agreement and the license granted hereunder shall remain in effect from the Effective Date for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”).

(b)    Licensee may terminate this Agreement by ceasing to use and, to the extent applicable, destroying all copies of the Software and Documentation made by or on behalf of Licensee and/or its Authorized Users.

(c)    Either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the terminating Party provides written notice thereof.

(d)    Either Party may terminate this Agreement, effective immediately, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

(e)    Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and, to the extent applicable, destroy all copies of the Software and Documentation made by or on behalf of Licensee and/or its Authorized Users or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 11(c)(B).

(f) Automatic Renewal
Unless otherwise provided in the Order Form or SOW, this Agreement shall automatically renew for successive periods equal to the length of the original Term, subject to any price adjustments as provided in the renewal notice.

(g) Renewal Notice
At least 60 days prior to the expiration of the current Term, Factorise shall provide written notice to the Customer of the upcoming expiration date, the terms for renewal, and the deadline for providing notice of non-renewal

  • Non-Renewal
    If the Customer does not wish to renew the Agreement, they must provide written notice of non-renewal to Factorise at least 30 days prior to the expiration of the current Term. If no such notice is provided, the Agreement shall automatically renew as provided in subsection 1.
  • Effect of Non-Renewal
    If a notice of non-renewal is given by the Customer, the Agreement shall terminate at the end of the current Term, and the provisions for termination, including data return and deletion, shall apply.

(j) Factorise’s Right to Non-Renew
Notwithstanding the automatic renewal provision, Factorise reserves the right to not renew the Agreement at the end of any Term by providing written notice to the Customer at least 60 days prior to the expiration of the current Term.

 

  1. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.

Factorise  shall implement commercially reasonable technical and organizational measures to secure availability, confidentiality and integrity with respect to the Software, the Customer Data and personal information. However, unless explicitly otherwise agreed in writing between Parties, the Software is provided on an “as is” and “as available” basis, without warranties of any kind and the Software is accessed or used by You at Your own risk and without any right to support, maintenance, updates or any other services. Factorise and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the software. Factorise and its licensors do not represent or warrant that (a) the use of the Software will be secure, timely, uninterrupted or error-free of operate in combination with any other hardware, software, system or data (b) the Software will meet Your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by You through the Software will meet Your Requirements or expectations, (e) errors or defects will be corrected, or (f) the Software or the server(s) that make the Software available are free of viruses or other harmful components. All conditions, representations and warranties, whether express, implied statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Factorise and its licensors. The Software may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Factorise is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Factorise shall not be responsible for any Customer Data. You, not Factorise, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Factorise shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Factorise reserves the right to establish or modify its general practices and limits relating to storage of Customer Data. You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to the Software.

THE FOREGOING WARRANTIES DO NOT APPLY, AND FACTORISE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.

THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FACTORISE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE FACTORISE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

(A) IN NO EVENT WILL FACTORISE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE FACTORISE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(B) IN NO EVENT WILL FACTORISE’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE FACTORISE PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE.

THE LIMITATIONS SET FORTH IN SECTION 12(a) AND SECTION 12(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

  1. Export Regulation. The Software and Documentation may be subject to export control laws, including the US Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the country in which it was originally licensed.
  2. Customer Customizations to the Core Platform

(a)The Customer shall have the right to customize the Core Platform for the Customer’s internal use as part of implementing and utilizing the customized Software transferred under this Agreement.

(b) Any such customizations shall remain within the logical and technical boundaries and scope of Factorise’s Core Platform licensing terms. The Customer is prohibited from exposing or distributing any customizations outside of Factorise’s core environment.

(c) Title and ownership of any intellectual property rights in such customizations shall vest solely in the Customer. The Customer hereby grants Factorise a non-exclusive, royalty-free license to access and use such customizations internally solely to provide the Software and services to the Customer pursuant to this Agreement.

(d) If Factorise performs or develops any customizations on behalf of the Customer, then Factorise shall be responsible for ensuring such customizations fall within the boundaries of the Core Platform licensing terms.

(e) If the Customer independently develops or performs any customizations without Factorise’s involvement, then the Customer shall be responsible for ensuring such customizations fall within the boundaries.

(f) If the Customer utilizes and pays for Factorise’s Customization Compliance Service to review any customizations, Factorise will use commercially reasonable efforts to assess compliance. Factorise will be responsible for any customizations it approves through this service that are later found non-compliant, unless due to inaccurate customer information.

(h) If Factorise determines any customizations are non-compliant, it shall notify the Customer and follow the process in Section (i) below.

(i) If Factorise determines, either with or without use of the compliance service, that any customizations violate the boundaries, it shall promptly notify the Customer in writing, including an explanation of the non-compliance issue. Factorise shall suspend access to the non-compliant customization and request that Customer remedy the issue.

If after 30 days the Customer fails to remedy the customization, Factorise may elect to either:

(i) Terminate support for and access to the specific non-compliant customization while continuing other obligations, or

(ii) Terminate this Agreement if the customization risks violating Factorise’s platform agreement.

 

  1. 15. Miscellaneous.

(a)    Governing Law; This Agreement shall be governed by and construed in accordance with the internal laws of the Netherlands without giving effect to any choice or conflict of law provision or rule (whether of the Netherlands or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the Netherlands. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the courts of Amsterdam, Netherlands, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document shall be validly served if delivered personally, mailed via registered or certified mail (return requested and postage prepaid), given by facsimile (confirmed by certification of receipt), sent to an email address provided by the receiving party, sent by overnight delivery through a nationally recognized overnight delivery service, freight prepaid or sent by courier (confirmed by receipt) to such Party’s address set forth herein.

The Parties agree to submit any disputes arising under this agreement to the jurisdiction of the competent Dutch courts.

(b)    Factorise will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Factorise’ reasonable control.

(c)    All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 15(c)).

(d)    This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Factorise with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

(e)    Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Factorise’ prior written consent, which consent Factorise shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Factorise’ prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15(e) is void. Factorise may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

(f)     This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

(g)    This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(h)    If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

(i)     For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form and all Annexes, Schedules, and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

(j)     The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

 

 

 

[END OF SOFTWARE END USER LICENSE AGREEMENT]

 

Factorise Sensor Purchase Agreement.

 

This Agreement is made between Factorise BV and [Customer] for the purchase of sensors as an optional addition to a Factorise software license.

  1. Purchase of Sensors. Customer may purchase the sensors specified in the Purchase Order to pair with its Factorise software license (e.g. IoT Connect).
  2. Software License Required. A separate Factorise software license (e.g. IoT Connect) is required to access and utilize data collected by the sensors in the Factorise software.
  3. Transfer of Ownership. Upon payment, ownership of the physical sensors transfers to Customer.
  4. Disclaimer of Warranties. Except for the limited warranty, the sensors are provided “as is” without warranty. All other warranties are disclaimed.
  5. Limited Warranty. The Limited Warranty provided by Factorise and any applicable back-to-back warranty from the sensor manufacturer. Factorise warrants the sensors will be free from defects in materials and workmanship for 1 year from delivery. Factorise will repair or replace defective sensors during this period
  6. Liability Limit. Factorise’s liability is limited to the amounts paid under this Agreement.
  7. Customer shall be solely responsible, at its own expense, for the proper use, installation and maintenance of the sensors in accordance with all applicable laws and regulations.
  8. Entire Agreement. This Agreement constitutes the parties’ entire agreement regarding the sensor purchase. The software license is subject to its own terms.

 

 

 

[END OF SOFTWARE END USER LICENSE AGREEMENT]

 

 

 

 

 




 

Factorise Information Technology Services Agreement 

 

This Information Technology Services Agreement (this “Agreement”) is made this by and between Factorise BV, Stationsplein 45 unit 1130.14, 3013AK Rotterdam and (“Customer”). 

WHEREAS, Company is engaged in the business of providing a full range of information technology consulting services and related software licenses, if required; and

WHEREAS, Customer desires to retain Company to perform information technology services and functions as further provided in Statements of Work (“SOW”) that may be proposed and approved by the parties hereto; and

NOW THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows.

AGREEMENT

  1. Contracted Services. This Agreement shall apply to the delivery of information technology services, support, and functions as further described in Statements of Work (“SOW”) that may be proposed and approved by the parties. Any such approved SOW shall be incorporated herein by reference (the services and functions described in SOW are hereafter referred to as the “Services”, including any proposed licensing of third party and Company owned software). In the event that the scope of Services is expanded, revised, or modified, for any SOW incorporated herein, the parties shall prepare and sign an amended or new SOW (or change order in form acceptable to Company), which likewise shall be attached hereto and incorporated herein by reference. Absent the execution of a SOW, this Agreement does not, in and of itself, represent a commitment by Customer to receive any Services from Company or pay Company fees.

 

  1. Terms of Agreement.
  2. The term of this Agreement will commence of the Effective Date set forth above and will continue until terminated by either party as provided below (“Term”). In the event that the SOW provides for a different Term, the SOW Term will control for that specific SOW only.
  3. Either party shall have the option to terminate this Agreement, without cause, by providing thirty (30) days prior written notice of its intent to terminate the Agreement to the other party. If a SOW provides for a different termination notice period, the SOW termination clause will control for that specific SOW only.
  4. In the event that there is a continuing need for any Services identified in a SOW, after the expiration of this Agreement or this Agreement is otherwise terminated other than for non-payment by Customer and Customer requests, in writing, to have Company complete the Services under an SOW and the Company agrees to complete such Services, this Agreement will continue for the period of time that it takes for the completion of such Services and Customer shall make payment for any Services so rendered in the manner provided in this Agreement .
  5. Licensed Software. If the Company has licensed software owned by the Company to the Customer or software of a third party licensed by the Company to the Customer after expiration of this Agreement or if this Agreement is otherwise terminated, the terms of the license of such software or the provisions of the SOW will determine if such license continues after such expiration or termination.
  6. The Agreement can be terminated for cause, as defined in paragraph 14(a) herein, at any time, provided the alleged breach if not cured in the manner and in the time frame set forth in Paragraph 14(a) below or Permitted Delay, as defined in Paragraph 14(d) herein, does not apply.

 

  1. Fees and Payment Terms.
  2. In exchange for the Services performed by Company, as set forth in any SOW, Customer agrees to compensate Company at the rates identified in the fee schedule set forth in a SOW. Such rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein. Customer will pay all undisputed invoices within thirty (30) days of invoice date.
  3. As to any software license included in any Services under any SOW, payment shall be made as provided in the SOW or actual software license agreement for such software and shall be subject to all terms and conditions including all limitations contained in any other documentation related to such software license, including without limitation, any end user license agreement.
  4. In addition, Customer shall reimburse Company its actual out-of-pocket expenses as reasonably incurred by Company in connection with the performance of Services. Additional expenses for materials, services, training, and hardware may only be incurred by Company and charged to Customer if prior written approval from Customer has been obtained.
  5. A late charge of one and one-half percent (1½%) per month, or the legal maximum if less, shall accrue on the past due billings unless Customer notifies Company of a billing dispute in writing prior to the payment due date. Customer shall be responsible for any costs incurred by Company in the collection of unpaid invoices including, but not limited to, collection and filling costs.

 

  1. Change Orders or Out of Scope Services.

To the extent that Customer requires or requests additional services or services that exceed or change the Services set forth in any SOW incorporated herein, Company will charge an additional fee for such additional or changed services or out of scope work.  Fees for such additional services or out of scope work will be set forth on a Change Authorization Order (“CAO”), which will also provide a description of the changed or additional service(s) being requested. Any such CAO shall be in form reasonable acceptable to the Company. Once a CAO is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as the SOW that is incorporated into the Agreement to which it applies.

 

  1. Ownership of Materials Related to Services.

The parties agree that the ownership of intellectual property rights to any materials prepared and delivered by Company in the course of providing the Services shall be governed by the terms of the SOW under which such Services are rendered.  Any ownership of any software licensed by the Company or through the Company to the Customer shall be as provided in any license agreement and any related documents, including without limitation, any end user license agreement. Notwithstanding the foregoing, the parties recognize that performance of Company hereunder will require the skills of Company and, therefore, Company shall retain the right to use, without fee and for any purpose, such “know-how”, ideas, techniques and concepts used or developed by Company in the course of performance of the Services of this Agreement, regardless of the ultimate ownership of intellectual property provided in the SOW.

 

  1. Independent Contractor.

The parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties.  All Company employees who are assigned to perform services at any Customer owned or leased facility shall be considered to be an employee of Company only and will not be considered an agent or employee of Customer for any purpose.  Company will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes and will make deductions for all taxes and withholdings required by law.  In no event will any Company employee be eligible for or entitled to any benefits of Customer.

 

  1. Confidential Information.
  2. Customer understands and acknowledges that Company may, from time to time, disclose “Confidential Information” to Customer. For purposes of this Agreement, the term “Confidential Information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to Company’s promotional and/or marketing strategy and activity, Company’s pricing information (including but not limited to rates, margins, and budgets), Company’s financial and budget information, Company’s customer lists, information about education, background, experience, and/or skills possessed by Company employees, Company employee compensation information, Company’s service and/or sales concepts, Company’s service and/or sales methodology, Company’s service and/or sales techniques, Company’s customer satisfaction data or sales information, or any information which Company marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within reasonable time (not to exceed thirty (30) days) after disclosure. Customer will not disclose Company’s Confidential Information to any third party at any time without the prior written consent of Company and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, Company’s Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of Company and shall in no event be transferred, conveyed, or assigned to Customer as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
  3. Company also understands and acknowledges that Customer may, from time to time, disclose to Company proprietary ideas, concepts, expertise, and technologies developed by Customer relating to computer application programming, installation, and operations (collectively “Customer’s Confidential Information”). Customer may further provide to Company documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Customer’s business operations (collectively “Confidential Trade Information”).Company agrees (i) not to use any Customer Confidential Information or Confidential Trade Information for its own use or for any purpose other than the specific purpose of completing the Services; (ii) not to voluntarily disclose any Customer Confidential Information or Confidential Trade Information to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Customer Confidential Information and/or Confidential Trade Information in order to prevent it from falling into public domain or the possession of persons other than those persons authorized hereunder to have such Customer Confidential Information and/or Confidential Trade Information. The foregoing duty shall survive any termination or expiration of this Agreement.
  4. In no event shall Customer use Company’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Company or any software licenses by or through the Company under an SOW.
  5. The following shall not be considered Confidential information for purposes of this Agreement: (a) Information which is or becomes in the public domain through no fault or act of the receiving party; (b) Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information; (c) Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or (d) Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.
  6. The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to the irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

 

  1. Non-Solicitation of Employees.

Neither Party will actively solicitor contract with the other Party’s employee engaged in the project during the term of this Agreement and for a one (1) year period following termination thereof (hereafter the “Non-solicitation Term”).  In the event that a Party desires to directly hire any employee of the other Party during the Non-solicitation Term, must first seek the other Party’s consent to hire the employee directly and to speak with the other Party’s employee about the employment opportunity. If the other Party grants the option to directly hire a such employee, and the employee accepts an offer of employment, the parties shall discuss issues related to the employee’s transition. If a Party violates the provisions of this clause 8,  it shall pay to the other Party, as liquidated damages, € 50’000.

 

  1. Customer and Company Responsibilities.

In addition to any obligations and responsibilities described in the SOW or elsewhere in this Agreement, Customer shall have shared responsibility with Company regarding the following:

  1. To ensure that the necessary business and application knowledge is available and conveyed from the Customer’s existing support team to Company’s support team.
  2. Provide ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines) and personal (i.e., end users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement.
  3. Provide at its facility, office space and equipment for Company’s on-site employees if required. Access must also be provided to the Company to the Customer’s source libraries, test systems, and test data, source code and SDKs.
  4. Provide external communications capability and/or access to its work facility to enable Company’s on-site project team to access the Customer’s information technology system for after hours or weekend Services as required.
  5. Customer shall assign an employee or representative to be present at the work facility for any after hours or weekend Services provided by the Company. In the event that Customer declines or fails to assign an employee or representative to be present during such hours, Customer waives any and all claims for any property damage or loss that occurs during such time that Company’s employee(s) is on the Customer’s work facility.
  6. Provide passwords and job numbers to Company employees as needed.

 

  1. Warranty of Services.

Any warranty offered by Company for Services provided herein shall be set forth in the SOW.  In the absence of any warranty language in the SOW, Company warrants that all Services performed pursuant to the Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the Services are being performed.  IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE SOW, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.

  1. Limitation of Liability.

 Customer agrees that Company shall not be liable to Customer, or any third party, for (1) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein for (2) any incidental or consequential damages, however, caused, and Customer agrees to indemnify and hold Company harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against Company by or in right of third parties or for (3) any punitive damages.  For purposed of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings, loss of or damage to business reputation or good will; loss of customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the Commonwealth of Massachusetts. Company’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Customer to Company as of the date the alleged damages were incurred.

  

  1. Indemnification.

Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense related to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the gross negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder.  To the extent such claim arises from the concurrent conduct of Customer, Company and/or third party, it is expressly agreed that Company’s liability shall be limited by the terms and provisions of paragraph eleven (11) herein, each party’s obligations of indemnity under this paragraph shall be effective only to the extent of each party’s pro rata share of liability.  To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit.  The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party’s written consent. 

  1. 13. Termination.
  2. Termination for Cause. If either party believes that the other party has failed in any materials respect to perform its obligations under the Agreement or any SOW (including any Exhibits or Amendments thereto), then that party may provide written notice to the other party’s management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under this Agreement or if Customer makes an unauthorized solicitation of a Company employee under the provisions of paragraph eight (8) herein, the breaching party shall have ten (10) business days after notice of such failure to cure the breach. If the breaching party fails to cure within ten (10) business days, then the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, if the breaching party does not, within thirty (30) calendar days after receiving notice, either (a) cure the material failure or (b) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party.
  3. Termination for Bankruptcy: Either party shall have the immediate right to terminate this Agreement, by providing written notice to the other party, in the event that (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.
  4. Payments Due: The termination of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
  5. Permitted Delays: Each party hereto shall be excused from performance hereunder for any period and the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including failures or fluctuations in electric power, heat, light, air conditioning or telecommunication equipment, and such nonperformance shall not be a default hereunder or a ground for termination hereof. Company’s time of performance shall be enlarged, if and to the extent reasonably necessary, in the event: (i) that Customer fails to submit information, instructions, approvals, or any other required elements in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by Customer or any governmental agency authorized to regulate, supervise, or impact Company’s normal processing schedule; (iii) that Customer fails to provide any equipment, software, premises or performance called for by this Agreement, and the same is necessary for Company’s performance hereunder. Company will notify Customer of the estimated impact on its processing schedule, if any.
  6. Continuation of Services: Company will continue to perform Services during the notice period provided in this paragraph 14, unless otherwise mutually agreed upon by the parties in writing. In the event that Customer provides the notice of termination and directs Company not to perform Services through the notice period, Customer agrees to pay Company an amount equal to the amount normally due to Company for all performed and charges and expenses reasonably incurred by Company in connection with the Services provided under this Agreement through the date of termination.
  7. Licensed Software. If the Company has licensed software owned by the Company to the Customer or software of a third party licensed by the Company to the Customer and this Agreement is terminated for cause, the terms of the license of such software or the provisions of the SOW will determine if such license continues after such termination.

 

 

  1. Data Return and Deletion Upon Termination
  2. Data Return. Upon termination of this Agreement for any reason, Factorise shall return all Customer Data to the Customer in a commonly used, machine-readable format within 30 days of the effective date of termination. Both parties shall agree upon the delivery method of the Customer Data, which may include secure electronic transmission or physical delivery of data storage devices at the Customer’s discretion and expense.
  3. Data Deletion. After the return of all Customer Data, Factorise shall delete all remaining copies of the customer data from its systems within 60 days of the effective termination date, except as may be required by law. Factorise shall provide the customer with written certification confirming the deletion of the Customer Data.
  4. Costs. Any reasonable costs incurred by Factorise in fulfilling its obligations under this section shall be borne by the Customer, provided that Factorise notifies the Customer of such expenses and obtains the Customer’s written approval before incurring them.
  5. Cooperation. Factorise shall cooperate in good faith with the Customer to ensure a smooth and orderly return of the Customer Data and to minimize any disruption to the Customer’s business operations during the termination process.
  6. Survival. The obligations outlined in this section shall survive the termination of this Agreement for any reason.
  7. 15. Miscellaneous Clauses:
  8. Non-Restrictive Relationship. Company may provide the same or similar services to the other customers and Customer may utilize other information technology service providers that are competitive with Company.
  9. Waiver. The rights and remedied provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failures in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.
  10. Notices. All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, mailed via registered or certified mail (return requested and postage prepaid), given by facsimile (confirmed by certification of receipt), sent to an email address provided by the receiving party, sent by overnight delivery through a nationally recognized overnight delivery service, freight prepaid or sent by courier (confirmed by receipt) addressed to the designated parties, either per mail or email.
  11. Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of the Agreement will not be affected.
  12. Captions. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
  13. Entire Agreement. This Agreement and the SOW(s) and/or CAO(s) incorporated herein and any documentation related to any licensed software provided for in any SOW constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.
  14. Attorneys’ Fees. The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
  15. Amendments. This Agreement and Exhibits may be amended only by an instrument in writing executed by the parties hereto. Any written work order submitted by Customer shall not amend the terms of this Agreement and will only be considered (1) a statement of the work to be performed; (2) set forth any deadlines or schedules; and (3) the additional fees to be charged, if any, for any out of scope work or services stated on the work order.
  16. Governing Law; Venue. This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its choice of law rules. The parties, to the extent they may lawfully do so, as to any legal action or proceeding arising out of or based upon this Agreement hereby submit to the jurisdiction of, and waive all objections to venue in, the federal or state courts sitting within the Commonwealth of Massachusetts and any court from which an appeal might be taken from such courts.
  17. Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit of Company and Customer and any successors or assigns of Company and Customer. Notwithstanding the forgoing, the Customer may not assign this Contract or any SOW to any third party without the prior written consent of the Company. No third party shall have any rights hereunder.
  18. Factorise reserves the right to outsource certain IT services, including but not limited to support, system integration, and development tasks, to trusted partners. These partners may include specialized support companies, system integrators, or other third-party service providers with whom Factorise has established agreements.

Factorise ensures that all outsourced partners adhere to the same high standards of quality, confidentiality, and data security as outlined in these terms. By using Factorise’s services, you acknowledge and consent to this outsourcing arrangement where necessary to provide efficient and reliable service delivery.

  

[END OF INFORMATION TECHNOLOGY SERVICES AGREEMENT]