Developer Terms and Conditions
Finastra FusionFabric Developer Terms & Conditions (version 1.2)
PLEASE READ THESE TERMS CAREFULLY
These Finastra FusionFabric Developer Terms & Conditions ("Agreement") form a legal agreement between you ("Partner") and Finastra International Limited (company registration number 971479) whose registered office is at Four Kingdom Street, Paddington, London W2 6BD, United Kingdom (hereinafter referred to as "Finastra”) (hereinafter referred to individually as a “Party” and collectively as the “Parties”).
By registering as a developer and making use of the PAAS Infrastructure you agree to comply with this Agreement, which shall come in to effect at the point Finastra accepts your application for access to FusionFabric.cloud as a developer. For the avoidance of doubt, Finastra is under no obligation to accept any application for access to FusionFabric.cloud and provides no guarantee that any such application shall be considered or responded to within any specific timescale.
1.1. Acceptable Use Policy – means the then current version of the Acceptable Use Policy posted on FusionFabric.cloud.
1.2. App – means a software application or component , including its code, libraries, and documentation, that is designed to interface with the Finastra Software.
1.3. App Consumer – means a licensee of Finastra Software who has been provided access to FusionFabric.cloud by Finastra for the purposes of reviewing, test-driving, using and/or installing Apps and/or App SaaS Services from the FusionStore.
1.4. Applicable Law(s) – means all applicable foreign and domestic laws, governmental regulations, ordinances, and judicial administrative orders, including, but not limited to, trademark and copyright laws, ICANN policies and procedures governing domain names and applicable export control laws or regulations.
1.5. App SAAS Services - means the provision of an App as a hosted software solution and related services to relevant App Consumers, and includes Partner SaaS Services.
1.6. Distribution or Distribute – means any monetisation of the Partner Apps or Partner SAAS Services by Partner to third parties, including the licensing or permitting access to the Partner Apps or Partner SAAS Services to third parties whether through the FusionStore or otherwise.
1.7. End User – means the App Consumer and any entities or individuals using the Partner App or Partner SAAS Services on behalf of and entitled by the App Consumer.
1.8. Finastra APIs – means the APIs, to which Finastra provides access to Partner as part of the PAAS Infrastructure and in accordance with the PAAS Documentation to enable Apps and App SaaS Services to interface with the Finastra Software or authorised third party services.
1.9. Finastra Confidential Information – means any content, tools, software, information or material accessible to registered users of FusionFabric.cloud only, including the PAAS Infrastructure, the FusionStore, the Finastra APIs, the PAAS Documentation, the Program Guide and the FusionStore Guide, and any information regarding the operation or performance of FusionFabric.cloud, whether provided in writing or orally or obtained through observation.
1.10. Finastra Software – means software created by or licensed to Finastra which Finastra licenses or provides access to its customers (including App Consumers), whether on an on-premises basis or a SaaS basis or otherwise.
1.11. FusionFabric.cloud – means the online portal operated by Finastra through which Partner, App Consumers and other authorised third parties can access the PAAS Infrastructure, FusionStore and other related Finastra services and materials.
1.12. FusionStore – means the online directory provided by Finastra where Finastra, Partner and other third parties may list Apps and App SAAS Services for Distribution to App Consumers, and which allows App Consumers to review, test-drive, use and/or install Apps and App SAAS Services.
1.13. Intellectual Property Rights – means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.14. PAAS Documentation – means the user guides and technical specification issued by Finastra (as updated from time to time) in relation to the PAAS Infrastructure.
1.15. PAAS Infrastructure – means the computer systems and capabilities provided by Finastra to Partner on FusionFabric.cloud in accordance with this Agreement.
1.16. PAAS Services – means the provision of all materials and benefits provided to Partner under this Agreement such as the provision of the PAAS Infrastructure and the FusionStore.
1.17. Partner App – means an App made available to App Consumers via the FusionStore, whether created by the Partner using the PAAS Infrastructure or created separately before or after the date of this Agreement.
1.18. Partner Confidential Information - means all data and content Partner develops, loads, stores or processes on the PAAS Infrastructure.
1.19. Partner SAAS Services – means App SAAS Services provided by Partner.
1.20. Private App – means a Partner App that is developed for a specific App Consumer (which may be the Partner itself) and that is not available to all App Consumers via the FusionStore.
1.21. Program Guide – means the description of the Finastra PAAS Partner Program, the benefits provided thereunder and the fees payable by Partner (as updated from time to time and made available on FusionFabric.cloud)
1.22. Term – has the meaning given in clause 14.
Partner submits the information and declarations requested under the Sign Up section on FusionFabric.cloud for consideration by Finastra. Upon acceptance of Partner by Finastra, Finastra creates user accounts personal to Partner and sends login details to Partner. The acceptance of Partner shall be in Finastra’s sole discretion. Upon receipt of such login details, Partner shall be granted the licences and access rights set out herein for the duration of the Term.
3. Finastra licence to Partner
3.1. Finastra grants Partner during the Term the right to access and use the PAAS Infrastructure and the PAAS Documentation on FusionFabric.cloud solely for:
3.1.1. developing and testing Partner Apps; and
3.1.2. downloading, installing and using one copy of any software or documentation provided for download by Finastra through the PAAS Infrastructure for the sole purpose of developing and testing Partner Apps; and
3.1.3. making Partner Apps and Partner SAAS Services available to App Consumers in accordance with the terms and conditions of this Agreement, the PAAS Documentation and the Program Guide, subject to review and approval of the Partner App by Finastra.
3.2. Any licences and access rights granted by Finastra to Partner hereunder shall be limited, non-exclusive, personal, revocable and non-transferable.
3.3. The rights set out under clause 3.1 are licensed on a named user basis and Partner shall be limited to five (5) named user accounts at any time, unless additional rights are purchased by Partner from Finastra. For each user account, Partner may permit one of its own employees the use in accordance with clause 3.1. User accounts cannot be shared or used by more than one individual employee but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function.
3.4. The Partner may not permit use of any of the licences and/or access rights granted hereunder to any third party, including affiliates or subcontractors. Should such third parties wish to get access to the PAAS Infrastructure, they will have to onboard in their own name in accordance with clause 2 of this Agreement.
3.5. Partner Apps may only use the Finastra APIs in the manner as prescribed in the PAAS Documentation. The Partner may not use or create Partner Apps that use APIs other than the Finastra APIs.
3.6. Partner Apps may not download or install any executable code. Interpreted code may only be used in the App if all scripts, code and interpreters are packaged in the App and not downloaded.
4. Technical Support
Partner shall be entitled to technical support to the extent set out in the Program Guide. Such technical support does not include support for third party applications and services made available as part of the PAAS Infrastructure.
5.1. Partner shall be eligible to utilise the FusionStore marketplace as set out in the PAAS Program Guide.
5.2. Partner may Distribute Partner Apps and Partner SAAS Services through the FusionStore. Any contract with an App Consumer for the Partner App or the Partner SAAS Services is between Partner and the the App Consumer only, and excludes in any event Finastra and its licensors. To the extent Finastra facilitates such contracts via FusionStore, Finastra acts as Partner's agent and Partner hereby authorises Finastra to act on its behalf to conclude such contracts via FusionStore. Partner must clarify such relationship in his contract with the App Consumer.
5.3. Partner acknowledges and accepts that Partner is solely responsible, and that Finastra has no responsibility of any kind for, testing and evaluation of each Partner App, including but not limited to, such Partner App’s functionality, technology, security, performance, compatibility and user interfacing.
5.4. Partner must submit each Partner App to Finastra for review and listing on FusionStore using the on-line process set out in the Program Guide. Finastra reserves the right, at its sole discretion and for any reason, to refuse to list a Partner App on the FusionStore and to remove any Partner App or Partner SAAS Services from the FusionStore.
5.5. Finastra may conduct security testing and an assessment on any Partner App itself or through a third-party at any time prior to or following listing of any Partner App. Partner agrees to reasonably cooperate with Finastra in any such testing and/or assessment and Partner acknowledges and accepts that Finastra and any third party used by Finastra has no responsibility whatsoever for any adverse effectson Partner’s systems, such as downtime.
5.6. The fact that Finastra may have reviewed, tested, approved or made any Partner App available in FusionStore does not relieve Partner of any its responsibilities in any way.
5.7. Partner acknowledges and accepts that Partner is solely responsible, and that Finastra has no responsibility of any kind for: the development, installation, operation, support and maintenance of each Partner App; the accuracy, legality and appropriateness of all content of each Partner App and any submissions submitted or made available by Partner through FusionStore; and any documentation, warranty and use by End Users of each Partner App, including any content, and for any losses incurred by any App Consumers and end users which may be incurred as a result of using any Partner App.
5.9. Partner acknowledges that users may post reviews of Partner Apps on FusionStore and that Finastra is not responsible for the content of such reviews.
6. Fees, Taxes
6.1. The Program Guide sets out the fees payable by Partner for the use of the PAAS Infrastructure, in particular for development and testing of Partner Apps. Where applicable, those fees are invoiced monthly in arrears.
6.2. All fees shall be payable by Partner to Finastra without deduction or set-off in the currency set out in the Program Guide within 14 days of receipt of a written invoice from Finastra.
6.3. Finastra shall appoint a billing and payment agent to collect all payments made by App Consumers in connection with the Partner App and Partner SAAS Services. Partner shall set the price for all Partner Apps and Partner SaaS Services, but Finastra shall be entitled to offer discounts to App Consumers in accordance with clause 6.4.
6.4. Finastra's billing and payment agent shall deduct a commission of thirty percent (30%) from all amounts received from App Consumers to pay to Finastra unless Finastra has chosen to offer a relevant discount to App Consumers (whether specific to the Partner App or Partner SaaS Service or more generally against FusionStore transactions), in which case such discount shall be deducted from Finastra's commission. The billing and payment agent's transaction fees shall be included in such commission. Finastra's billing and payment agent shall pay the remainder of the revenue (less such commission) to Partner within thirty (30) days of receipt of any amounts from App Consumers.
6.5. All functionality and services made available through a Partner App or Partner SAAS Services shall be Distributed, licensed, sold or otherwise monetised exclusively via the FusionStore. Where a Partner App provides access to additional functionality by connecting to other software products or services, any such additional software products and services shall be Distributed, licensed, sold or otherwise monetised exclusively via the FusionStore and the commission payable by Partner to Finastra shall be based on all fees payable for the entirety of such functionality and services. Partner shall not operate any software products or services in conjunction with Finastra Software or provide access to any software products or services for such purpose other than through FusionStore nor provide for any payment relating to such software products or services other than via Finastra's billing and payment agent.
6.6. The fees payable for use of the PAAS Infrastructure (clause 6.1), where applicable, are consumption based and payable on a per use basis. The commissions (clause 6.4), to the contrary, are payable by Partner to Finastra as a remuneration for Finastra making the development and/or connectivity capabilities available to Partner.
6.7. The fees set out in this Agreement and the Program Guide are exclusive of value added tax and any other sales tax which the Partner shall pay in addition upon receipt of a valid tax invoice.
6.8. If the Partner is required by law to deduct withholding tax from any payment to Finastra, Partner shall pay an additional amount to Finastra such that the net amount received by Finastra, after deduction of the withholding tax, is equal to the amount that Finastra would have received from the Partner had the withholding requirement not applied.
7. Partner license to Finastra
7.1. Partner grants Finastra the licences and access rights as set out in this clause 7.
7.2. Upon request by Partner for the listing of a Partner App in the FusionStore, Finastra shall have the right to inspect such Partner App (including its code, binaries, documentation) and any related information which is submitted to be Distributed on the FusionStore. The Partner will provide Finastra all information as set out in the PAAS Documentation or otherwise reasonably requested by Finastra.
7.3. Upon Finastra accepting any Partner App (other than a Private App) for listing on the FusionStore, Partner hereby grants Finastra a fully paid up, royalty-free, worldwide, sub-licensable, transferable license to:
7.3.1. permit App Consumers that have paid for such Partner Apps via the FusionStore to access Partner Apps and to use, load, copy, install such Partner Apps on the hosted environments Finastra operates on behalf of App Consumers as necessary to allow App Consumers to access and use the Partner Apps and Partner SaaS Services; and
7.3.2. use the Finastra APIs to access the Partner App and the Partner SaaS Services to interface with the Finastra Software and authorised third party services on behalf of App Consumers that have paid for such Partner Apps via the FusionStore.
7.4. Upon Finastra accepting any Private App for listing on the FusionStore, Partner hereby grants Finastra a fully paid up, royalty-free, worldwide, sub-licensable, transferable license to:
7.4.1. permit the authorised users of the relevant App Consumer to access the Private App and to use, load, copy, install such Private App on the hosted environment Finastra operates on behalf of the relevant App Consumer as necessary to allow the relevant App Consumer to access and use the Private App; and
7.4.2. use the Finastra APIs to access the Private App to interface with the Finastra Software and authorised third party services on behalf of the relevant App Consumer.
8. Compliance; Audit
8.1. Partner shall comply with all Applicable Laws and shall not engage in any deceptive, misleading, illegal or unethical marketing activities.
8.2. Partner shall at all times comply with the Acceptable Use Policy.
8.3. Each Party undertakes that it willl not, and will procure that none of its officers, employees, subcontractors or other persons acting on their instructions or behalf will not, in connection with this Agreement, engage in any activity, practice or conduct which would (if engaged in by an English person) constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010, or which would constitute an offence under the Foreign Corrupt Practices Act of the United States, and agrees to comply and procure compliance with each of them, as amended from time to time, and any similar local laws to the extent that they apply.
8.4. Partner agrees to complete Finastra standard due diligence questionnaire and compliance certifications as and when requested by Finastra and in accordance with the Program Guide. As part of those Partner will certify in writing that Partner has not, and to Partner’s knowledge no other person, including but not limited to every owner, director, employee, representative and agent of Partner has made, offered to make, agreed to make, or authorized any payment, loan, donation or gift of money or anything else of value, directly or indirectly, to or for the benefit of any government official, to obtain or retain business, or secure any improper advantage. Partner further agree that should Partner learn of information regarding any such payment or offer in connection with Finastra’s business. Partner will immediately notify Finastra of such knowledge or suspicion.
8.5. Partner warrants that none of its officers are government officials, police officers or civil servants.
8.6. The Partner shall from time to time, at the request of Finastra, provide any information reasonably requested by Finastra to verify compliance with this Agreement, including Partner’s payment obligations hereunder, and will allow Finastra or its representatives to audit its records in connection therewith. The Partner shall provide all reasonable co-operation and assistance in relation to any such audit including, without limitation: all information requested by Finastra or its representative within the permitted scope of the audit; reasonable access to any Partner premises and computers; and access to the Partner staff.
8.7. Breach of any of the undertakings in this clause shall be deemed to be a material breach of the Agreement and shall entitle Finastra to terminate this Agreement by written notice with immediate effect, without prejudice to any rights or remedies that have already accrued, or subsequently accrue, to Finastra.
9.1. Confidential Information includes Partner Confidential Information and Finastra Confidential Information as well as furthermore all information related to the business of the disclosing party that may be obtained by the receiving party from any source (including, without limitation, in written, oral, visual or electronic form) arising from or as a result of this Agreement which would be considered to be confidential by a reasonable person based on the nature of the information and the circumstances in which it is communicated. Confidential Information does not include information that the receiving party can demonstrate: (i) is, or becomes, generally available to the public other than as a result of an act or omission by the receiving party in breach of this Agreement, including information and data which Partner makes available to potential purchasers through the FusionStore; (ii) the disclosing party discloses to a third party without restriction on further disclosure; (iii) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (v) is previously known to the receiving party without nondisclosure obligations.
9.2. Each party agrees that it will hold the other's Confidential Information in confidence and not disclose to any third party any Confidential Information belonging to the other party without the other party's prior written consent, except as authorised in the Agreement, or use the other's Confidential Information for any purpose other than the implementation of this Agreement. Each party further agrees to notify the other in writing of any misuse or misappropriation of the other party’s Confidential Information that may come to its attention.
9.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
9.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9., it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10. Intellectual Property
10.1. Subject to the limited licences set forth in this Agreement, nothing in this Agreement transfers or assigns to Finastra any of Partner’s Intellectual Property Rights in any Partner App or Partner SAAS Services (including without limitation any code developed by Partner using the PAAS Infrastructure) or Partner’s other technology, products or services, and nothing in this Agreement transfers or assigns to Partner any of Finastra’s Intellectual Property Rights in the PAAS Infrastructure, the Finastra API’s, the FusionStore or Finastra’s other technology, products or services.
10.2. Partner agrees that it has no right, title or interest in or to the PAAS Infrastructure, the PAAS Services or FusionFabric.cloud, except as expressly granted by Finastra herein, and Partner shall not directly or indirectly, sell, lease, license, lend, assign, transfer or otherwise charge or encumber the any part of the PAAS Infrastructure, the PAAS Services or FusionFabric.cloud or any modified form thereof. The Partner shall not modify, copy and/or reverse engineer, decompile, disassemble any materials provided as part of the the PAAS Infrastructure, the PAAS Services or FusionFabric.cloud.
11. Changes to the Program Guide and PAAS Documentation
Finastra may change the Program Guide and the PAAS Documentation at any time in its sole discretion.
12. Competitive applications
Partner acknowledges that Finastra and other parties using the PAAS Infrastructure may develop and publish applications or provide services that are similar to or otherwise compete with Partner Apps or the Partner SAAS Services or Partner’s other applications, products or services.
13.1. Partner is responsible for all activities that occur in its user accounts, and for Partner users’ compliance with this Agreement. In no event shall Partner (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the benefits provided under this Agreement in any way; (ii) modify or make derivative works based upon FusionFabric.cloud, the PAAS Services, the PAAS Infrastructure, the Finastra APIs, or the FusionStore; (iii) create Internet “links” to the PAAS Services, or “frame” or “mirror” it on any other server or wireless or Internet-based device; (iv) send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or programs; (v) interfere with or disrupt the integrity of performance of FusionFabric.cloud and/or the PAAS Services or the data contained therein; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material; or (vii) reverse engineer or access FusionFabric.cloud and/or the PAAS Services for the purpose of (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of FusionFabric.cloud, or (c) copying any ideas, features, functions or graphics of FusionFabric.cloud and/or the PAAS Services; or (viii) share data or content from FusionFabric.cloud and/or the PAAS Services with Finastra competitors.
13.2. Additional Restrictions. Without affecting any other restrictions set forth in this Agreement, Partner may not: (i) remove or modify any program markings or any notice of Finastra’ or Finastra’ licensors’ proprietary rights; or (ii) make FusionFabric.cloud, the PAAS Services, any materials delivered hereunder, or any materials resulting from the services available in any manner to any third party for use in the third party’s business operations, other than as expressly permitted herein or in the Program Guide; or (iii) use any of the benefits provided under this Agreement in a way that misrepresent Partner’s relationship with Finastra or is otherwise misleading or that reflects negatively on Finastra or may harm Finastra’ rights therein; or (iv) modify in any way any Finastra’ trademarks and/or associated logos (e.g., by combining Partner’s company or brand name with the Finastra logo; or (v) create any content or otherwise transmit any information or material that: (a) is false or misleading; (b) is harassing or invades another's privacy, harms minors in any way, or promotes bigotry, racism, hatred or harm against any group; (c) is obscene; (d) infringes another's rights, including but not limited to Intellectual Property Rights; (e) constitutes unsolicited commercial email or “spam”; or (f) violates any Applicable Laws or regulations. Partner, and not Finastra, are responsible for all content and other materials that Partner upload, post, email or otherwise transmit in using the PAAS Services provided under this Agreement.
13.3. Partner may not use any of the benefits and materials provided under this Agreement and in particular the PAAS Infrastructure and the FusionStore in any jurisdiction for any unlawful, fraudulent, obscene, offensive content or activity. In particular Partner shall refrain from advocating or causing harm, interfering with or violating the integrity of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights.
14. Term and Termination
14.1. The Term shall be from the date Partner is first provided access to FusionFabric.cloud to the date this Agreement is terminated in accordance with this clause 14.
14.2. Either party may terminate this Agreement for cause with immediate effect: (i) if the other party is in material irremediable breach of this Agreement, (ii) if the other party has committed a material breach which hasn’t been rectified upon notice within reasonable time (Partner’s failure to make a payment under this Agreement shall be a material breach to be remedied within no later than 14 days from the due date), (iii) if either party has to stop the running of its technology to mitigate the effects of a potential Intellectual Property Rights infringement, or (iv) if the other party becomes subject of a petition in bankruptcy or other proceedings relating to insolvency, or makes an assignment for the benefit of its creditors.
14.3. Either party may terminate this Agreement for convenience on 30 days’ written notice.
14.4. Upon termination:
14.4.1. Partner shall cease to use all materials provided by Finastra under this Agreement, including the PAAS Infrastructure, any software and documentation and return all copies of such materials immediately on expiration or termination of this Agreement.
14.4.2. Finastra will destroy any data that Partner or its customers or any other person uploaded onto the PAAS infrastructure in relation to the Partner App or Partner SAAS Services. Prior to termination Partner may download its data in accordance with the Program Guide;
14.4.3. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced;
14.4.4. any outstanding fees to Finastra shall become immediately due and payable; and
14.4.5. clauses 1, 6, 8, 9, 10, 12, 13, 15, 16.4, 17, 18, 19, 20, 21, 23, 24 and 25, this clause 14 and other provisions which are necessary for the interpretation or enforcement of this Agreement shall continue in force.
15. Data Protection
15.1. Partner appoints Finastra as a processor for the personal data Partner loads, stores or processes in the PAAS Infrastructure and the FusionStore. Additional rules as per the PAAS Documentation and the Program Guide may apply.
15.2. Partner shall be responsible for obtaining all necessary permissions to use, store and process any content in the PAAS Infrastructure and FusionStore and grants Finastra permission to do the same.
15.3. Finastra may use sub-processors and subject to Finastra complying with the obligations set forth in the General Data Protection Regulation (EU) 2016/679 transfer personal data across country borders, including outside the European Union. A list of the sub-processors current at any point in time shall be provided upon Partner’s request.
15.4. Finastra will destroy or return any data upon termination of this Agreement, or earlier upon partner’s request. Finastra may charge for a return of data upon partner’s request, such as delivering data in a specific content.
15.5. The PAAS Documentation and the Program Guide describe the security functionality provided by Finastra. If such security functionality does in any way not meet Partner’s requirements, Partner shall immediately cease the use of the PAAS Infrastructure and the FusionStore.
16.1. Finastra warrants during the Term of this Agreement that it provides the PAAS Services using commercially reasonable skill and care.
16.2. Goods and services from third parties provided by Finastra under this Agreement are provided "as is" without any warranties of any kind.
16.3. Finastra does not warrant uninterrupted or error-free operation of FusionFabric.cloud or the PAAS Services, that FusionFabric.cloud or the PAAS Services will be fit for a particular purpose or that it meets the Partner’s requirements or that it will correct any defects or that it will prevent third party disruptions or unauthorised third party access or viruses, malicious software. Partner is responsible for backing up Partner’s and its user’s data, software, information and other materials and Finastra shall not be liable for any loss of, theft of or damage to such data, software, information and other materials.
16.4. The warranties from Finastra under this Agreement are the exclusive warranties provided by Finastra under this Agreement and all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement, including the implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose.
16.5. Finastra’s warranties shall not apply if Partner does not use FusionFabric.cloud, the PAAS Services or the FusionStore in accordance with the PAAS Documentation, the Program Guide, or otherwise in accordance with Finastra’s instructions.
16.6. Partner warrants and represents that it owns all Intellectual Property Rights and other rights necessary to permit Finastra the licences and access rights granted under this Agreement.
17.1. Nothing shall limit or exclude liability for fraud or for death or personal injury caused by negligence or any other liability which cannot be limited or excluded by law.
17.2. Subject to clause 17.1, under no circumstances shall Finastra be liable (regardless of the basis of liability including without limitation as a result of breach of contract, negligence or any other tort, under statute or otherwise) for loss of profits, loss of business, loss of earnings, loss of contracts, loss of goodwill, loss of anticipated savings, wasted management, operation or other time, or loss of use or value of or damage to data (regardless of whether the foregoing losses are direct or indirect) or any indirect or consequential or incidental or special loss or damages.
17.3. Subject to clauses 17.1 and 17.2, Finastra’s aggregate liability under or in relation to this Agreement or the relationship established thereby (regardless of the basis of liability, including without limitation as a result of breach of contract, negligence or any other tort, under statute or otherwise) shall not exceed the total fees payable by the Partner to Finastra during the year within which the breach occurs.
18. Indemnification by Finastra
18.1. Finastra shall defend the Partner against any claim by a third party that Partner’s use of PAAS Infrastructure or the PAAS Services infringes such third party's Intellectual Property Rights, and Finastra shall indemnify and hold harmless the Partner in respect of all costs, damages and reasonable legal fees that a court awards or that are agreed by Finastra by way of settlement of the claim provided that: (i) Finastra is given appropriate written details of the claim within five (5) days of it first being made; and (ii) Finastra (or any of its licensors that it nominates for this purpose) is given sole control of the defence of the infringement claim and any related settlement negotiations; and (iii) Finastra is given all reasonable assistance (the reasonable cost of such assistance being met by Finastra); and (iv) Partner or the person against whom the claim is made does not make any admission of liability or otherwise prejudice the claim without the written consent of Finastra or its nominated licensor.
18.2. Finastra shall have no obligation or liability under clause 18.1: (i) for claims in relation to products or services not owned or performed by Finastra, (ii) for claims in relation to any modification of FusionFabric.cloud, the PAAS Infrastructure or the Finastra APIs by someone else than Finastra, (iii) if Partner uses the PAAS Infrastructure or the PAAS Services other than as specified in the PAAS Documentation, or (iv) if Partner uses the PAAS Infrastructure or the PAAS Services or the PAAS Documentation other than permitted under this Agreement.
19. Indemnification by Partner
Partner shall defend, indemnify and hold harmless Finastra against any loss, damage or costs (including reasonable legal fees) incurred by Finastra in connection with claims made or brought by third parties against Finastra (i) alleging that any Partner App, any Partner SAAS Services or any other products and services of Partner, any material (including any trademarks) provided by Partner to the PAAS Infrastructure or FusionStore, Partner’s or its customers’ use of FusionFabric.cloud, the PAAS Services or the PAAS Infrastructure, or the listing in the FusionStore infringes its Intellectual Property Rights or otherwise breaches the Applicable Laws; (ii) arising out of Partner’s actual or alleged breach of any representation, warranty or term of an agreement relating to Partner’s products and services, including the Partner Apps or Partner SAAS Services; and (iii) arising out of Partner’s breach of this Agreement; provided that: (i) Partner is given appropriate written details of the claim as soon as reasonably possible; and (ii) Partner (or any of its licensors that it nominates for this purpose) is given sole control of the defence of the infringement claim and any related settlement negotiations; and (iii) Partner is given all reasonable assistance (the reasonable cost of such assistance being met by Partner); and (iv) Finastra does not make any admission of liability or otherwise prejudice the claim without the written consent of Finastra or its nominated licensor.
All notices shall be in writing in the English language and addressed to the relevant party’s then current registered office or last known place of business marked for the attention of the ‘Legal Department’. Notices delivered by recorded delivery shall be deemed served three days after posting.
21. Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by the laws of England and Wales, without regard to the conflict of law principles. The courts of England and Wales shall the have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The United Nations Convention for the Sale of Goods does not apply.
Finastra may amend this Agreement, the Program Guide and FusionFabric.cloud from time to time provided such changes apply to the majority of developers using FusionFabric.cloud. Finastra shall inform Partner of all changes to this Agreement and any material changes to FusionFabric.cloud in writing or via a notification via FusionFabric.cloud and, where practicable, shall do so at least thirty (30) days prior to such changes taking effect. If Partner is unhappy with such changes, Partner should terminate this Agreement in accordance with clause 14.3.
23. Entire Agreement
23.1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
23.2. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
23.3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
23.4. Nothing in this clause shall limit or exclude any liability for fraud.
24.1. Partner shall not, without the prior written consent of Finastra, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
24.2. Finastra may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
25.1. Finastra and Partner are independent contractors. Finastra is not Client’s agent, joint venturer, partner, or fiduciary and does not undertake to perform any of the Partner’s obligations, or assume any responsibility for the Partner’s business operations.
25.2. If any provision of this Agreement is invalid or unenforceable the remaining provisions remain in full force and effect. Nothing in this Agreement affects the statutory rights of consumers that cannot be waived or limited by contract.
25.3. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
25.4. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.