Developer Terms and Conditions

Finastra FusionFabric.cloud Developer Terms & Conditions (version 2.2)

1.    Definitions
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 by Partner, including its code, libraries, and documentation, for the purpose of interfacing with the Finastra Software.
1.3.    App Offering – means an App, SPI or DataSet Services by Partner for third party Users, together with, if any, all related services, including but not limited to the Connection and Data Services, hosting, support, implementation, and (data) subscription services.
1.4.    Applicable Law(s) – means all regional, national and international laws, rules, regulations, standards and directions, including those imposed by any governmental or regulatory authority and all applicable industry standards and standards determined by any self-regulatory body which apply from time to time to the person or activity in the circumstances in question.
1.5.    Connection and Data Services – means the standard infrastructure and processes on FusionFabric.cloud for the purpose of using the App in conjunction with the Finastra Software, the intake of data from the User’s systems, and the exchange of data between User’s systems and the App Offering; the Connection and Data Services form part of the PAAS Services.
1.6.    DataSet Services - means processing operations in relation to data sets submitted from Finastra Software.
1.7.    Deploy or Deployment – means providing User use of or access to an App Offering; or in the case of a Private App the use of such Private App for the processing of data other than for purpose of testing the Private App.
1.8.    Developer Documentation – means the then current version of the Developer Portal Documentation posted on FusionFabric.cloud, including the API Catalog.
1.9.    Distribution or Distribute – means any monetization of the App Offering or parts thereof by or on behalf of Partner, including the grant of licenses or access to Users including all related services.
1.10.    Down Time – means the time during which access to FusionFabric.cloud is not available for production use by Partner except for: (i) planned downtime, (ii) any unavailability caused by circumstances beyond Finastra’s reasonable control, including, for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to Finastra’s own data centers, and (iii) a suspension of Partner’s access to FusionFabric.cloud in accordance with the terms of the Agreement.
1.11.    End User(s) – means the individuals and entities to whom User provides use of the App Offering.
1.12.    Finastra APIs – means the APIs made available in the API Catalog on FusionFabric.cloud.
1.13.    Finastra Software – means software created or licensed by Finastra which Finastra provides to its customers, including Users, whether on an on-premises or a hosted basis or otherwise.
1.14.    FusionFabric.cloud – means the online platform operated by Finastra through which development partners and Users can access the PAAS Services.
1.15.    FusionStore – means the online directory provided by Finastra for the listing of App Offerings for Distribution to Users, and which allows Users to review App Offerings and contact Partner.
1.16.    Intellectual Property Rights – means patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks 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.
1.17.    PAAS Services – means the computer systems, capabilities and services provided by Finastra to Partner on FusionFabric.cloud in accordance with this Agreement, including but not limited to the Finastra APIs, SPIs,  DataSet Services, the Connection and Data Services and the FusionStore; PAAS Services excludes any part of any App Offering of any other partner or user of FusionFabric.cloud.
1.18.    Private App – means an App for Partner’s own internal use, that is not used to provide services to third party users, and that is not available to third party users.
1.19.    Program Guide – means the guide published on FusionFabric.cloud, which, among other things, describes the FusionFabric.cloud Partner Program, the benefits provided thereunder and the fees payable by Partner (as updated from time to time and made available on FusionFabric.cloud).
1.20.    SPI - means an online service made available on FusionFabric.cloud that may be agnostic of the core systems used in conjunction with.
1.21.    Term – has the meaning given in clause 0.
1.22.    User - means a licensee of Finastra Software or other user who has been provided access to FusionFabric.cloud by Finastra for the purposes of using App Offerings. In relation to its Private Apps Partner is also a User.
1.23.    User Data – means all data, including data relating to End Users, that is exposed through the Finastra APIs or otherwise transmitted from User’s systems, including the Finastra Software, to the App Offering; User Data also includes telemetry information which is information captured on FusionFabric.cloud about Users’ and End Users’ usage of the App Offering.

2.     Finastra FusionFabric.cloud Sandbox Developer Terms & Conditions
The Parties may have entered into the Sandbox Developer Terms and Conditions for Partner’s access to FusionFabric.cloud for development and testing purposes only in which case this Agreement supersedes and replaces such Sandbox Developer Terms and Conditions.

3.    Finastra license to Partner
3.1.    Finastra grants Partner during the Term the right to access and use the PAAS Services and the Developer Documentation solely for:
3.1.1    developing and testing Apps, SPIs and DataSet Services;
3.1.2    making App Offerings available to Users in accordance with the terms and conditions of this Agreement, the Developer Documentation and the Program Guide, subject to prior review and approval of the App Offering by Finastra;
3.1.3    using SPIs and DataSet Services provided by Finastra to Partner as part of the App Offering (if subscribed to);
3.1.4    making the Connection and Data Services available to User as part of the App Offering; and
3.1.5    consuming Private Apps in accordance with the terms and conditions of this Agreement, the Developer Documentation and the Program Guide.
3.2.    Except as expressly set out in this clause 3, any licenses and access rights granted by Finastra to Partner hereunder shall be limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable.
3.3.    Partner may not permit use of any of the PAAS Services to any third party, including affiliates or subcontractors. Should such third parties wish to get access to the PAAS Services, they will have to onboard in their own name in accordance with clause 0 of this Agreement.
3.4.    Apps using APIs of any Finastra Software may only use the Finastra APIs published in the API Catalog on FusionFabric.cloud at any point in time to interface with Finastra Software, and such use shall be in compliance with the Developer Documentation.
3.5.    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.    Availability and Technical Support Service Levels
4.1.    Finastra uses commercially reasonable efforts to the achieve a monthly availability of 99.5% for Partner’s access to FusionFabric.cloud calculated as follows:
[(total monthly time less Down Time) divided by total monthly time] x 99.5.
4.2.    Finastra aims at providing at least 24 hours advance electronic notice of any down time, except in urgent circumstances (such as, for example a security threat or imminent or actual system failure).
4.3.    Development Support: Any issues and questions in relation to the PAAS Services prior to Deployment can be raised on the community section of FusionFabric.cloud. This is a public forum open to all development partners of Finastra and Partner should be conscious of this fact in relation to information Partner does not wish to disclose publicly. Finastra may in its own discretion remove entries from the community section.
4.4.    Production Support: Upon (i) acceptance of the App Offering, or Private App, or modifications or subsequent versions thereof, by Finastra for Deployment and (ii) receipt of any applicable fees for Finastra’s review Partner will be given access to Finastra’s production support portal for development partners on FusionFabric.cloud. Two dedicated support contacts among Partner’s employees with a good understanding of the relevant PAAS Services may log cases on errors leading to the PAAS Services not conforming materially with the Developer Documentation, or questions on how to use the PAAS Services.
4.5.    Partner will provide all technical support for the App to the User, in accordance with the contract entered into between Partner and User for the provision of the App. Such contract shall make it unambiguously clear to Users that all technical support is provided by Partner, and not Finastra. The Partner shall provide to Users as a minimum industry standard levels of support including timely web, email and telephone support, initial response times not to exceed one business day. Finastra shall have no obligation to provide any support directly to Users but may choose to do so on a discretionary case by case basis.

5.    App Review and Approval
5.1.    Partner shall notify Finastra about App Offerings and changes thereto prior to Deployment and provide Finastra with the information requested including technical and commercial details about any App Offering (including Private Apps) and the Partner’s organization and affiliates. Any App Offering has to be listed on the FusionStore prior to Distribution and Deployment.
5.2.    Finastra may review the App Offering using its own personnel or a third-party. Partner agrees to reasonably cooperate with Finastra in connection with this review at Partner’s own cost. Finastra’s review may include an assessment of the information provided, an interview, performance and security testing, as well as bias assessments. Finastra shall have the right to inspect the App’s code, binaries and documentation. Security testing may include remote application-level and network-level security testing. The Partner shall pay Finastra the fees for such reviews as set out in the Program Guide or as otherwise agreed. Finastra conducts such reviews for its own benefit and Partner may not rely on or promote the outcome of any such review. Finastra shall not be liable to Partner for any downtime caused by the review.
5.3.    Any Deployment or listing on the FusionStore shall be subject to Finastra’s approval at its sole discretion.
5.4.    Partner shall submit any subsequent versions of the App (including all patches, updates and upgrades as those terms are generally understood in the software industry) or other changes to the App Offering to Finastra prior to Deployment. If Finastra decides in its sole discretion that such subsequent version contains a material change over the previously reviewed version, Finastra may conduct another review in accordance with clause 5.2 subject to fees as set out therein.
5.5.    Finastra may also offer or promote further reviews of the App Offering by third parties authorized by Finastra and familiar with the PAAS Services against payment of the fees set out in the Program Guide. The Partner may have such further reviews conducted at its own discretion. Those are not conducted by or on behalf of Finastra.
5.6.    Finastra does not state, confirm, warrant or represent the content, quality, results or conclusions of any reviews.

6.    Distribution of App Offerings
6.1.    Partner shall contract directly with the User for any Distribution and use of any part of the App Offering, including the Connection and Data Services. Any such contract is between Partner and the User only and excludes in any event Finastra and its licensors. Partner must clarify such relationship in its contracts with the Users.
6.2.    PARTNER ACKNOWLEDGES AND ACCEPTS THAT PARTNER IS SOLELY RESPONSIBLE, AND THAT FINASTRA HAS NO RESPONSIBILITY OF ANY KIND FOR: ANY DOCUMENTATION, WARRANTY AND USE BY END USERS OF EACH APP OFFERING, AND FOR ANY LOSSES INCURRED BY ANY USERS OR END USERS AS A RESULT OF USING ANY APP OFFERING.
6.3.    PARTNER SHALL ENSURE THAT ALL USER DOCUMENTATION WHICH IT PROVIDES IN CONNECTION WITH AN APP OFFERING SHALL ACCURATELY REFLECT AND DESCRIBE ALL ITS FUNCTIONALITY, INCLUDING SECURITY AND SAFEGUARDS. PARTNER SHALL ENSURE THAT AN UP-TO-DATE PRIVACY POLICY IS MADE AVAILABLE TO END USERS SETTING OUT PARTNER’S COLLECTION, PROCESSING, HANDLING AND CONTROL OF ANY PERSONAL DATA. PARTNER SHALL PROMPTLY NOTIFY END USERS OF ANY UPDATE TO SUCH PRIVACY POLICY.
6.4.    Partner acknowledges that users may post reviews of App Offerings on FusionStore and that Finastra is not responsible for the content of such reviews.

7.    Deployment
7.1.    Any Deployment of an App shall be subject to Finastra’s discretional approval.
7.2.    PARTNER IS SOLELY RESPONSIBLE, AND FINASTRA HAS NO RESPONSIBILITY OF ANY KIND, FOR THE FUNCTIONALITY, TECHNOLOGY, SECURITY, PERFORMANCE, COMPATIBILITY AND USER INTERFACING OF ANY PART OF THE APP.
7.3.    PARTNER IS SOLELY RESPONSIBLE, AND FINASTRA HAS NO RESPONSIBILITY OF ANY KIND FOR: THE DEVELOPMENT, INSTALLATION, OPERATION, SUPPORT AND MAINTENANCE OF THE APP; THE ACCURACY, LEGALITY AND APPROPRIATENESS OF ANY CONTENT OF THE APP; AND ANY DOCUMENTATION, WARRANTY AND USE BY USERS OR END USERS OF THE APP, AND FOR ANY LOSSES INCURRED BY PARTNER, USERS OR END USERS AS A RESULT OF USING THE APP.

8.    Fees, Taxes
8.1.    Partner appoints Finastra as the billing and payment agent to invoice and collect all payments to be made by Users to Partner in connection with the App Offering. Finastra may appoint any group entity to carry out such billing and payment services. Partner shall set the price for the App Offering, but Finastra shall be entitled to offer discounts to Users in which case such discount shall be deducted from Finastra's commission in accordance with clause 8.2 below.
8.2.    The Program Guide sets out the fees payable by Partner for the use of the PAAS Services in addition to the commission set out in clause 8.3 below, including consumption fees such as the API call charges, if any, and validation fees. Where applicable, those fees are invoiced monthly in arrears.
8.3.    Unless otherwise agreed between Partner and Finastra in writing, Partner shall pay Finastra a commission based on a revenue share basis amounting to thirty percent (30%) of the fees for any Distribution.
8.4.    All functionality and services made available through the App Offering shall attract Finastra’s commission. Where an App provides access to or makes use of additional functionality by connecting to other software products or services the fees payable by User for any such additional software products and services shall equally attract Finastra’s commission. Partner shall not provide for any payment relating to any software products or services for such purpose other than via Finastra as Partner’s billing and payment agent.
8.5.    Finastra in its capacity as Partner’s billing and payment agent shall deduct and retain the applicable commission from all amounts received from Users and pay the remainder of the revenue (less such commission) to Partner within thirty (30) days of receipt of any amounts from Users. Partner further authorizes Finastra to deduct any other fees due in accordance with clause 8.2, if any.
8.6.    The fees and commissions set out in this Agreement and the Program Guide are exclusive of value added tax and any other sales tax which Partner shall pay in addition upon receipt of a valid tax invoice. All fees and commissions shall further be payable by Partner to Finastra without deduction or set-off in the currency set out in the Program Guide.
8.7.    Finastra’s commission in accordance with clause 8.3 is based on gross amounts prior to deduction of withholding tax, and Finastra shall not suffer any shortfall in commission as a result of User’s deduction of withholding tax from any amounts payable to the Partner. If 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 Partner had the withholding requirement not applied.
8.8.    Partner may consider agreeing in its contract with the User that payments shall be grossed up accordingly where withholding tax requirements apply to the User’s payments. Should any withholding tax requirements apply with regards to the App Offering Partner will notify Finastra about those in detail so that Finastra can reflect those in its billing and collections. In the absence of any such notification, Finastra will not apply withholding tax. Partner agrees to defend, indemnify and hold harmless Finastra and its affiliates against any losses or penalties suffered in relation to not or wrongly applied withholding tax.
8.9.    Partner will duly and proactively notify Finastra about the exact amounts and applicable rates of all applicable taxes that are relevant for Finastra’s billing and payment agency. Those include taxes that are required by law to be included on invoices to Users, such as value added taxes, sales taxes and other taxes (“Invoice Taxes”), as well as withholding taxes.  Partner will provide all information necessary for Finastra to validate the rate of sales tax applicable, including any relevant invoicing location and beneficiary location. Partner shall ensure that Finastra can correctly invoice, collect and remit any such Invoice Taxes as necessary. In the absence of any such notification, Finastra may not apply any taxes.
8.10.    PARTNER WARRANTS AND REPRESENTS THAT THE TRANSACTIONS WITH USERS IN RELATION TO THE PARTNER APP OFFERINGS SHALL BE CONSIDERED PURELY BUSINESS TO BUSINESS TRANSACTIONS AND SHOULD IN NO WAY REFLECT OR BE CONSIDERED AS BUSINESS TO CONSUMER TRANSACTIONS.

9.    Partner license to Finastra
Partner hereby grants Finastra a royalty-free, worldwide, sub-licensable and transferable, license to access the App and App Offering to provide the PAAS Services and validations.

10.    Compliance; Audit
10.1.    Partner shall comply with all Applicable Laws and shall not engage in any deceptive, misleading, illegal or unethical marketing activities. PARTNER SHALL AT ALL TIMES COMPLY WITH THE ACCEPTABLE USE POLICY AND ITS TERMS ARE HEREBY EXPRESSLY AGREED TO BE INCORPORATED AND MADE A PART OF THIS AGREEMENT.
10.2.     The PAAS Services are or may become subject to export or import control or regulation by various countries (including the United States of America). Partner represents that neither it nor any of the Users or End Users to whom Partner provides the use of the App are entities restricted or prohibited by any applicable export control regulation (including that of the United States of America). Partner agrees to comply with all applicable export and import laws and regulations (including those of the United States of America).
10.3.    Each party undertakes that it will 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.
10.4.    Partner agrees to complete Finastra’s standard due diligence questionnaire and compliance certifications as and when requested by Finastra. 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 agrees 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.
10.5.    Partner represents and warrants that none of its officers are government officials, police officers or civil servants.
10.6.    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. 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 Partner staff. Partner shall in particular provide copies of contracts and other documentation with Users and all calculations necessary to understand and verify the fees charged to Users. In case the audit reveals an underpayment of more than five percent (5%), Partner shall reimburse Finastra for the cost of the audit.
10.7.    Breach of any of the provisions 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.

11.    Confidentiality
11.1.    “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances of disclosure. Finastra’s Confidential Information includes, but is not limited to any content, tools, software, information or material made available on FusionFabric.cloud to registered developers only, including the Developer Documentation and any information regarding the operation or performance of FusionFabric.cloud. As between the Parties and except for Private Apps, Finastra’s Confidential Information includes also the User Data. Partner’s Confidential Information includes but is not limited to Apps and Partner’s business and marketing plans, technology and technical information; products designs; and business processes. Confidential Information does not include information that the Receiving Party can demonstrate: 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; the Disclosing Party discloses to a third party without restriction on further disclosure; is rightfully disclosed to the Receiving Party by a third party without restriction on disclosure; is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information; or is previously known to the Receiving Party without nondisclosure obligations.
11.2.    The Receiving Party agrees that it will hold the Disclosing Party’s Confidential Information in confidence and not disclose to any third party without the Disclosing Party’s prior written consent, except as authorized in the Agreement
11.3.    The Receiving Party shall take all reasonable steps to ensure that the Disclosing Party’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.
11.4.    The Receiving 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 Disclosing 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 11.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

12.    Intellectual Property
12.1.    Subject to the limited licenses set forth in this Agreement, nothing in this Agreement transfers or assigns to Finastra any of Partner’s Intellectual Property Rights in any App (including without limitation any code developed by Partner using the PAAS Services) 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 Services, the Connection and Data Services, the Finastra Software and any derivatives thereof, the Finastra API’s, the FusionStore or Finastra’s other technology, products or services.
12.2.    Partner agrees that it has no right, title or interest in or to the PAAS Services, 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 any part of the PAAS Services or any modified form thereof.

13.    Competitive applications
Partner acknowledges that Finastra and other parties using the PAAS Services may develop and publish applications or provide services that are similar to or otherwise compete with the App Offering or Partner’s other applications, products or services.

14.    Restrictions
In no event shall Partner:
14.1.    reverse engineer any part of the PAAS Services
14.2.    modify or make derivative works based upon the PAAS Services;
14.3.    create Internet “links” to the PAAS Services, or “frame” or “mirror” it on any other server or wireless or Internet-based device;
14.4.    send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or programs;
14.5.    access FusionFabric.cloud for the purpose of: (i) building a competitive product or service; or (ii) building a product using similar ideas, features, functions or graphics of FusionFabric.cloud; or (iii) copying any ideas, features, functions or graphics of FusionFabric.cloud;
14.6.    share data or content from FusionFabric.cloud or the PAAS Services with Finastra competitors;
14.7.    remove or modify any program markings or any notice of Finastra’ or Finastra’ licensors’ proprietary rights;
14.8.    make 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;
14.9.    use any of the benefits provided under this Agreement in a way that misrepresents Partner’s relationship with Finastra or is otherwise misleading or that reflects negatively on Finastra or may harm Finastra’ rights therein; or
14.10.    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.

15.    Term and Termination
15.1.    The Term shall be from the Effective Date to the date this Agreement is terminated in accordance with this clause 15.
15.2.    Either party may terminate this Agreement for cause with immediate effect:
15.2.1    if the other party is in material irremediable breach of this Agreement;
15.2.2    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, to take payments for Distributions other than via Finastra as its billing and payment agent, or to terminate such billing and payment agency shall be a material breach to be remedied within no later than 14 days);
15.2.3    if either party has to stop the running of its technology to mitigate the effects of a potential Intellectual Property Rights infringement; or
15.2.4    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.
15.3.    Either party may terminate this Agreement for convenience on 30 days’ written notice.
15.4.    Upon termination:
15.4.1    Partner shall cease to use the PAAS Services including all materials, software and documentation and return all copies immediately on expiration or termination of this Agreement;
15.4.2    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;
15.4.3    any outstanding fees to Finastra shall become immediately due and payable; and
15.4.4    clauses 1, 6, 8, 9, 10, 11, 12, 13, 14, 16, 18, 19, 20, 21, 22, 24, 26, this clause 15 and other provisions which are necessary for the interpretation or enforcement of this Agreement shall continue in force.

16.    User Data (including telemetry information)
16.1.    Partner warrants and represents that:
16.1.1    any storing, processing and transmission of the User Data occurs strictly in accordance with a valid prior written agreement between Partner and User with regards to the App Offering; and
16.1.2    Partner will not use the User Data for any purpose other than providing the App Offering to the User.
16.2.    Partner shall also maintain and handle all User Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security, and in accordance with all applicable privacy laws and regulations.
16.3.    Finastra shall have a perpetual, irrevocable, worldwide right to (i) de-identify, anonymize, pseudonymize, aggregate or otherwise convert any data processed as part of the PAAS Services into blind data (collectively, the “De-identified Data”); and to (ii) use, disclose or sell De-identified Data for product improvement and development, benchmarking, analytics and insights, or any other lawful purpose, as long as such De-identified Data does not directly identify the Partner, User or any particular data subject.

17.    WARRANTIES
17.1.    FINASTRA WARRANTS DURING THE TERM OF THIS AGREEMENT THAT IT PROVIDES THE PAAS SERVICES USING COMMERCIALLY REASONABLE SKILLS AND CARE. IN THE EVENT OF ANY BREACH OF THIS WARRANTY, ANY CLAIM MADE BY PARTNER SHALL BE SUBJECT TO THE LIMITATIONS ON FINASTRA’S LIABILITY AS SET OUT IN CLAUSE 18.
17.2.    GOODS AND SERVICES FROM THIRD PARTIES PROVIDED BY FINASTRA UNDER THIS AGREEMENT ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND.
17.3.    FINASTRA DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PAAS SERVICES, THAT THE PAAS SERVICES ARE FIT FOR A PARTICULAR PURPOSE, THAT THEY MEET PARTNER’S REQUIREMENTS, OR THAT FINASTRA WILL CORRECT ANY DEFECTS OR THAT IT WILL PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD-PARTY ACCESS OR VIRUSES, OR MALICIOUS SOFTWARE. PARTNER ACCESSES AND USES THE PAAS SERVICES AT ITS OWN RISK AND ACKNOWLEDGES THAT THOSE ARE NOT ERROR-FREE AND MAY BE SUBJECT TO PERIODS OF DOWNTIME. PARTNER IS RESPONSIBLE FOR BACKING UP PARTNER’S DATA AND THE USER DATA, SOFTWARE, INFORMATION AND OTHER MATERIALS AND FINASTRA SHALL NOT BE LIABLE FOR ANY LOSS OF, THEFT OF, CORRUPTION OR DAMAGE TO SUCH DATA, SOFTWARE, INFORMATION AND OTHER MATERIALS.
17.4.    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.
17.5.    FINASTRA’S WARRANTIES SHALL NOT APPLY IF PARTNER DOES NOT USE THE PAAS SERVICES IN ACCORDANCE WITH THIS AGREEMENT, THE ACCEPTABLE USE POLICY, THE DEVELOPER DOCUMENTATION, THE PROGRAM GUIDE, OR OTHERWISE IN ACCORDANCE WITH FINASTRA’S INSTRUCTIONS.
17.6.    PARTNER WARRANTS AND REPRESENTS THAT IT OWNS ALL INTELLECTUAL PROPERTY RIGHTS AND OTHER RIGHTS NECESSARY TO GRANT FINASTRA THE LICENSES AND ACCESS RIGHTS GRANTED UNDER THIS AGREEMENT.

 

18.    LIABILITY
18.1.    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.
18.2.    SUBJECT TO CLAUSE 18.1, 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: (i) LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE OR EARNINGS, LOSS OF CONTRACTS, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, WASTED MANAGEMENT, STAFF, OPERATION OR OTHER TIME, OR LOSS OF DATA, OR LOSS OF USE OR VALUE OF OR DAMAGE TO DATA (REGARDLESS OF WHETHER THE FOREGOING LOSSES ARE DIRECT OR INDIRECT); OR (ii) ANY INDIRECT OR CONSEQUENTIAL OR INCIDENTAL, OR PUNITIVE OR SPECIAL LOSS OR DAMAGES.
18.3.    SUBJECT TO CLAUSES 18.1 AND 18.2, 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 GREATER OF: (i) $5000.00 (FIVE THOUSAND U.S. DOLLARS); OR (ii) THE TOTAL FEES PAYABLE BY PARTNER TO FINASTRA DURING THE YEAR WITHIN WHICH THE BREACH OCCURS.
18.4.    THE LIMITATIONS AND EXCLUSIONS OF WARRANTIES AND LIABILITIES IN CLAUSE 17 AND THIS CLAUSE 18 APPLY EVEN IF THE REMEDY PROVIDED DOES NOT FULLY COMPENSATE PARTNER FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE, AND EVEN IF FINASTRA KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.

19.    Indemnification by Finastra
19.1.    Finastra shall defend Partner against any claim in the United States of America, Canada, the United Kingdom or the European Economic Area by a third party that Partner’s use of the PAAS Services infringes such third party's Intellectual Property Rights, and Finastra shall indemnify and hold harmless 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:
19.1.2    Finastra is given appropriate written details of the claim within five (5) days of it first being made;
19.1.3    Finastra (or any of its licensors that it nominates for this purpose) is given sole control of the defense of the infringement claim and any related settlement negotiations;
19.1.4    Finastra is given all reasonable assistance (the reasonable cost of such assistance being met by Finastra); and
19.1.5    Partner does not make any admission of liability or otherwise prejudice the claim without the written consent of Finastra or its nominated licensor.
19.2.    Finastra shall have no obligation or liability under clause 19: (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 or the PAAS Services by someone else other than Finastra; (iii) if Partner uses the PAAS Services other than as specified in this Agreement, the Developer Documentation, the Program Guide; or (iv) if Partner uses the PAAS Services or the Developer Documentation other than permitted under this Agreement.
19.3.    TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING CLAUSE 18 STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF FINASTRA AND THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO PARTNER IN RESPECT OF ANY ACTUAL OR ALLEGED INFRINGEMENT OF INTELLECTUAL OR OTHER PROPRIETARY RIGHTS.

20.    Indemnification by Partner
20.1.    Partner shall defend, indemnify and hold harmless Finastra and all Finastra affiliates, and their directors, officers, employees and agents, (each a “Finastra Indemnified Party”), against any loss, damage or costs (including reasonable legal fees) incurred by a Finastra Indemnified Party in connection with claims made or brought by third parties against a Finastra Indemnified Party: (i) alleging that the App, any part of the App Offering or any other products and services of Partner, any material (including any trademarks) provided by Partner to FusionFabric.cloud, Partner’s or its customers’ use of FusionFabric.cloud, the PAAS Services, or the listing on FusionFabric.cloud infringes its Intellectual Property Rights or otherwise breaches any 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 App Offering; or (iii) arising out of Partner’s breach of this Agreement, provided that:
20.1.1.    Partner is given appropriate written details of the claim as soon as reasonably possible;
20.1.2.    Partner (or any of its licensors that it nominates for this purpose) is given sole control of the defense of the infringement claim and any related settlement negotiations;
20.1.3.    Partner is given all reasonable assistance (the reasonable cost of such assistance being met by Partner); and
20.1.4.    The Finastra Indemnified Party does not make any admission of liability or otherwise prejudice the claim without the written consent of Partner or its nominated licensor, such consent not to be unreasonably withheld or delayed.

21.    Notices
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 ‘General Counsel’. Notices delivered by recorded delivery shall be deemed served three days after posting.

22.    Parties, Governing Law and Jurisdiction
The Finastra entity that Partner is contracting with under this Agreement, the governing law in any lawsuit arising out of or in connection with this Agreement, and the applicable jurisdiction depend on where Partner is domiciled.
22.1.    Parties. Partner is contracting under this Agreement with the relevant Finastra entity set out in the table below in this clause 22, depending on where the Partner is domiciled.
22.2.    Governing Law and Jurisdiction. Each Party agrees to the applicable governing law without regard to choice or conflicts of law rules and to the exclusive jurisdiction of the applicable courts set out in the table below in this clause 22.

 

Partner country Finastra Contracting Entity Governing Law Jurisdiction
A country in the Americas, including the United States of America, Mexico, a country in South or Central America or the Caribbean Finastra Technology, Inc
285 Madison Avenue, 4th floor
New York NY 10017
United States
New York State and Federal Courts located in New York, New York
A country in Europe, the Middle East or in Africa. Finastra International Limited
Four Kingdom Street
Paddington
London
W2 6BD
United Kingdom
England and Wales Courts of England and Wales
Canada Misys International Banking Systems Limited
2800 Park Place
666 Burrard Street
Vancouver BC V6C 2Z7
Canada
Ontario and controlling Canadian federal law The appropriate provincial or federal courts of Toronto, Ontario, Canada
A country in Asia or in the Pacific region, excluding Australia and New Zealand Finastra International Financial Systems Pte. Limited
5 Shenton Way, #12-01/04 UIC Building, Singapore, 068808, Singapore
Singapore Courts of Singapore
Australia and New Zealand Finastra International Pty Ltd
Citigroup Centre
Level 18F, 2 Park Street, Sydney NSW 2000, Australia
New South Wales, Australia Courts of New South Wales, Australia

 

23.    Variation
Finastra may amend this Agreement, the Program Guide and the Developer Documentation 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 of any material changes to the Program Guide and the Developer Documentation in writing, by email or via a notification on 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 15.2.4.

24.    Entire Agreement
24.1.    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.
24.2.    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.
24.3.    Nothing in this clause shall limit or exclude any liability for fraud.

25.    Assignment
25.1.    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.
25.2.    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.

26.    Miscellaneous
26.1.    Finastra and Partner are independent contractors. Subject to clause 8.1, Finastra is not Partner’s agent, joint venture, partner, or fiduciary and does not undertake to perform any of Partner’s obligations, or assume any responsibility for Partner’s business operations.
26.2.    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.
26.3.    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.
26.4.    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.