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Confidentiality & Ownership of Feedback
Any comments, suggestions, ideas, materials (including without limitation original or creative materials), or any other expression that you, send, transmit, or otherwise provide to FICO on this Site (collectively “Feedback”) shall be deemed to be non-confidential and shall become the sole property of FICO, subject to your license grant below. You agree that any Feedback you provide on this Site is entirely voluntary, non-confidential, gratuitous, and non-committal. Subject to the conditions described on the Privacy Notice page of the Site, FICO shall have no obligation of any kind with respect to such Feedback and shall be free to use, copy, modify, or distribute the Feedback, without limitation, for any purpose whatsoever (commercial or otherwise) and without compensation, notice, or acknowledgement to you. FICO’s use of your Feedback includes, but is not limited to researching, developing, or marketing products, features, or plans incorporating such Feedback.
You understand, with respect to your Feedback, that FICO: (a) may be working on the same or a similar idea or concept; (b) may already know of such an idea or concept from other sources; (c) may simply wish to develop or research your same or similar idea or concept on its own; or (d) may have taken or will take some other type of action related to your idea or concept provided in your Feedback. You agree that you will not use, share, distribute, or disclose any Feedback you view on this Site (which includes your own Feedback, as well as any other party’s Feedback) to any third party, and that you will not use any Feedback on this Site for your own benefit, or for the benefit (commercial or otherwise) of any third party, for any reason whatsoever. FICO will not sell, publish, or share your Feedback in a way that could identify you without your explicit permission.
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Disclosure For Legal Reasons
There will be occasions when it is imperative that we do release information to third parties. Here are the circumstances that will dictate such an action from us: (1) to comply with valid legal requirements such as a law, regulation, search warrant, subpoena or court order; or (2) in special cases, such as a physical threat to you or others, a threat to homeland security, a threat to our system or network, or cases in which we believe it is reasonably necessary to investigate or prevent harm, fraud, abuse or illegal conduct. In the event that we are legally compelled to disclose your personal information to a third party, we will make reasonable efforts to notify you unless doing so would violate the law or court order.
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Other Important Information
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You agree that you will only upload, share, post, publish, transmit, or otherwise make available (“Share”) on or through the Site your Feedback and content that you have the right and authority to Share and for which you have the right and authority to grant to FICO all of the licenses and rights set forth herein. By Sharing content or providing Feedback, you grant FICO a worldwide, perpetual, royalty-free, irrevocable, nonexclusive, fully sublicensable license to use, edit, reproduce, modify, adapt, translate, publish, publicly perform, publicly display, broadcast, transmit and distribute the content for any purpose (commercial or otherwise) and in any form, medium, or technology now known or later developed. This includes, without limitation, the right to reproduce, prepare derivative works, incorporate, or implement such content and Feedback into any FICO product or service, and to display, market, sublicense and distribute the content or Feedback as incorporated or embedded in any product or service distributed or offered by FICO without compensation to you. You warrant that: (a) you have the right and authority to grant this license; (b) FICO’s exercise of the rights granted pursuant to this license will not infringe or otherwise violate any third-party rights; (c) you do not have or plan to have a patent, patent pending, or any other intellectual property right in any idea or concept you have provided or will provide in any of your Feedback; and (d) all so-called moral rights in the content or Feedback have been waived to the full extent allowed by law.
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Reservation of Rights
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FICO Sites are for informational purposes, and may enable processing of applications and/or data, but are not intended to provide any financial, legal, or investment advice. Some of the information on this Site may contain certain forward-looking statements within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995 regarding events and trends that may affect FICO’s future results. Such statements are subject to risks and uncertainties that could cause FICO’s actual results to differ materially. Such factors include, but are not limited to, FICO’s ability to recruit and maintain key technical and managerial personnel, the maintenance of its existing relationships with key alliance partners, regulatory changes applicable to the use of consumer credit and other data, its ability to continue to develop new and enhanced products and services, competition, market demand and other factors described in FICO’s annual report to stockholders, its annual report on Form 10-K, quarterly reports on Form 10-Q, and other reports filed with the Security and Exchange Commission.
Any action against FICO must be brought within one (1) year after the cause of action arises. FICO is not responsible for delay or failure to perform due to causes beyond its reasonable control.
Effective Oct 5, 2018
THIS CUSTOMER AGREEMENT (“CUSTOMER AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE FAIR ISAAC PRODUCTS (AS DEFINED BELOW) AND SERVICES (AS DEFINED BELOW) IN YOUR ORDER AND IS AN AGREEMENT BETWEEN YOU (OR, IF YOU REPRESENT AN ENTITY, THE ENTITY YOU REPRESENT) (COLLECTIVELY, “CLIENT”) AND FAIR ISAAC CORPORATION (OR ITS AFFILIATE SPECIFIED IN THE APPLICABLE ORDER FORM (DEFINED BELOW) FOR THE APPLICABLE FAIR ISAAC PRODUCTS (AS DEFINED BELOW) OR SERVICES) (“FAIR ISAAC”). THIS CUSTOMER AGREEMENT TAKES EFFECT WHEN CLIENT CLICKS THE “I ACCEPT” OR “PLACE ORDER” OR “PURCHASE” OR SIMILAR BUTTON OR CHECK BOX PRESENTED WITH CLIENT’S ORDER (ALONG WITH THE ORDER FORM (DEFINED BELOW) FOR CLIENT’S ORDER AND THIS CUSTOMER AGREEMENT) AT THE TIME OF PURCHASE THROUGH THE FICO MARKETPLACE (DEFINED BELOW), OR WHEN CLIENT FIRST USES OR OTHERWISE ACCESSES THE APPLICABLE FAIR ISAAC PRODUCTS (AS DEFINED BELOW) OR SERVICES, WHICHEVER OCCURS FIRST (“EFFECTIVE DATE”).
CLIENT HEREBY REPRESENTS TO FICO THAT CLIENT IS LAWFULLY ABLE TO ENTER INTO A CONTRACT AND CLIENT HAS THE LEGAL AUTHORITY TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT.
PART ONE – SAAS SERVICE.
1. SaaS Service and Maintenance.
1.1. General. Pursuant to the terms and conditions of the Agreement, Fair Isaac will provide Client the SaaS Service indicated in the relevant ordering document (e.g., an applicable Order Form order form, purchase order form) or other agreement (e.g., service orders, statements of work) that references and incorporates the terms of this Customer Agreement and describes the Fair Isaac Product or Services applicable to Client’s order through FICO’s Marketplace and provides a further description of the SaaS Service offering, fees, payments and other commercial terms, as well as additional licensing restrictions, terms, definitions, and if applicable service level agreement, for the specific SaaS Service, together with all exhibits, schedules, and other attachments to that ordering document or other agreement (each, an “Order Form”). The terms and conditions of this Customer Agreement are in addition to, and do not replace or override, the terms and conditions contained in the any particular Order Form. Unless otherwise defined in this Customer Agreement, all capitalized terms used herein have the meanings given them in the relevant Order Form.
1.3. Support Services – Client Requirements. Fair Isaac may change or discontinue any or all of the SaaS Service and the Support Services or change or remove functionality of any or all of the foregoing from time to time. Fair Isaac will notify Client of any material change to or discontinuation of the foregoing. Without limiting any of the forgoing, Fair Isaac will provide the SaaS Service and the Support Services during the Subscription Term subject to Client’s timely Cooperation, which includes the following:
(a) Client will maintain a high speed Internet connection, and hardware, software (including Internet browser software), environment and systems that are compatible with the SaaS Service (collectively, “Client Platform”), as more specifically set forth in the applicable Documentation and Order Form. Fair Isaac is not responsible for operation or support of the Client Platform, in whole or in part.
(b) Client acknowledges and agrees that (i) Fair Isaac may regularly maintain, upgrade, and update the SaaS Service environment and the Fair Isaac Software underlying the SaaS Service(s), (ii) the SaaS Service(s) are continually evolving, and some changes will occur automatically while other changes may require Client cooperation to schedule and implement the changes, (iii) Fair Isaac will use commercially reasonable efforts to schedule material changes with at least 30 days advance notice to its customers currently subscribed to receive the SaaS Service (“SaaS Customers”), (iv) Fair Isaac may request that Client test pending changes in a non-production environment (Lower Environment) prior to the scheduled change, and Client agrees to make commercially reasonable efforts to accommodate such request and share feedback from such testing with Fair Isaac, (v) while Fair Isaac strives to minimize the impact of changes on SaaS Customers, certain changes may require Client to upgrade the Client Platform (e.g., use a more current version of a compatible Internet browser) in order to make effective use of the SaaS Service, (vi) Fair Isaac will not support prior versions of the SaaS Service and accordingly Fair Isaac will upgrade Client to the current version of the SaaS Service when it is generally available to all SaaS Customers, and (vii) Client acknowledges that Fair Isaac may observe and at its discretion and report to Client on Client’s usage of the SaaS Service, and may use such information to improve the SaaS Services and make recommendations for Client’s improved usage of the SaaS Service.
(c) Client will provide Client Data to Fair Isaac in compliance with Section 3.3 (Client Data Obligations) below. Client must provide all Client Data for use in the SaaS Service, and unless otherwise specified in an Order Form, as applicable, Fair Isaac is not obliged to modify or add to the Client Data. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Client Data.
2. Access Rights and Restrictions to SaaS Service.
2.1. SaaS Service and Documentation. Subject to the terms and conditions of the Agreement (including without limitation Sections 1.3 and 2.2 herein and the terms of the applicable Order Form), Fair Isaac hereby grants to Client, effective during the Subscription Term, a personal, non-exclusive, non-transferable, non-sublicenseable, limited license to allow Authorized Users of Client to access and use the SaaS Service and Documentation only in the Territory only in the ordinary course of Client’s internal business for the Intended Purpose (as defined in the applicable Order Form).
2.2. Conditions of Use. Client’s right to access and use the SaaS Service is subject to the following conditions. Client will not (and will not authorize any Third Party to, and shall ensure that its Authorized Users do not) do any of the following:
(a) use the SaaS Service (or any other Fair Isaac Property) or Documentation except as expressly permitted under Section 2.1 and in accordance with the terms and conditions of the Agreement;
(b) transfer, assign, sublicense, lease, or distribute to any other person any of its rights to use the SaaS Service (or any other Fair Isaac Property) or Documentation;
(c) sell, rent, license or lease the SaaS Service (or any other Fair Isaac Property) or Documentation;
(d) make the SaaS Service (or any other Fair Isaac Property) or Documentation available to any person who is not an Authorized User;
(e) copy, reproduce, transmit or download all or any feature, design or graphic in, the SaaS Service (or any other Fair Isaac Property), or Documentation;
(f) in any way modify, adapt, translate, or make derivative works from or of the SaaS Service (or any other Fair Isaac Property) or Documentation or otherwise reverse engineer, decompile, disassemble, or otherwise attempt to reduce any object code of any of the foregoing to human perceivable form or permit others to do so;
(g) access or use the SaaS Service (or any other Fair Isaac Property) or Documentation (i) in order to build a competitive solution or to assist a Third Party to build a competitive solution, or (ii) to load test the SaaS Service (or any other Fair Isaac Property) in order to test scalability or exceed the usage limits listed in this Customer Agreement or any applicable Order Form;
(h) use the SaaS Service (or any other Fair Isaac Property) or Documentation in a manner that violates any applicable law, rule or regulation;
(i) permit the SaaS Service (or any other Fair Isaac Property) to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services or arrangements, or otherwise used for processing data, hosting or other information providing for or on behalf of any third party;
(j) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the SaaS Service (or any other Fair Isaac Property) or Documentation;
(k) incorporate the SaaS Service (or any other Fair Isaac Property) or Documentation or any portion thereof into any other materials, products, or services;
(l) transmit through the SaaS Service (or any other Fair Isaac Property) unlawful, immoral, libelous, tortious, infringing, defamatory, false, threatening, vulgar, or obscene material or harmful to minors, or send spam or any other form of duplicative and unsolicited messages through the SaaS Service;
(m) transmit to or through the SaaS Service (or any other Fair Isaac Property) material containing software viruses or other harmful or deleterious computer code, routines, files, scripts, agents, or programs that may damage, intercept or expropriate any data or system;
(n) interfere with or disrupt the integrity or performance of the SaaS Service (or any other Fair Isaac Property) or the data contained therein;
(o) attempt to gain unauthorized access or attempt to exceed an existing authorization to access the SaaS Service (or any other Fair Isaac Property); or
(p) except for rights provided to Authorized Users as permitted in the Agreement, allow any Third Party to use any user identification(s), password(s), issued to Client for access to the SaaS Service (or any other Fair Isaac Property).
2.3 Authorized Users. Client is solely responsible for identifying and authenticating all Authorized Users, for approving access by such Authorized Users to the Services, for controlling against unauthorized access, and for maintaining the confidentiality of user names and passwords. Client is responsible for all activities that occur under its and its Authorized Users’ user names password or as a result of Client’s or Authorized Users’ access to the SaaS Services. The rights of any Authorized User permitted to use the SaaS Service on a named user basis or subject to a user limit cannot be shared or used by more than one individual (unless such authorization is reassigned in its entirety to another Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the SaaS Service). Client shall change all passwords used to access the SaaS Service at regular intervals. If Client learns of an unauthorized Third Party having obtained knowledge of a password for the SaaS Service, Client shall inform Fair Isaac thereof immediately and promptly change the password. Except to the extent caused by Fair Isaac’s breach of the Agreement, (a) Client is responsible for all activities that occur under its account, regardless of whether the activities are authorized by Client or undertaken by Client, Client’s employees or a third party (including Client’s agents, contractors, or users), and (b) Fair Isaac and its affiliates are not responsible for unauthorized access to Client’s account.
2.4 Secure Access. Fair Isaac will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the SaaS Service, and Client shall comply with the applicable Fair Isaac security guidelines and procedures made known to Client through the SaaS Service or otherwise. Client agrees that Fair Isaac does not control the transfer of data, including but not limited to Client Data, over telecommunications facilities, including the Internet, and Fair Isaac does not warrant secure operation of the SaaS Service or that such security technologies will be able to prevent third party disruptions of the SaaS Service.
3. Client Data.
3.1 Use of Client Data. Client hereby grants Fair Isaac the worldwide right during the Subscription Term to use, reproduce, distribute, transmit and make derivatives of the Client Data (a) in connection with Fair Isaac’s provision of the SaaS Service, Support Services, hosting of Client Data (if applicable SaaS Services requires) at Fair Isaac Data Centers and Production Environment, and Professional Services, and (b) for internal analytic, statistical, security, quality control, product development and similar internal purposes. Client will provide Fair Isaac all Client Data which is necessary to perform the SaaS Services, the Support Services or the Professional Services, as applicable.
3.2 Client Data Protection. Fair Isaac shall not use or process Client Data except to perform and provide the SaaS Service, Support Services and Professional Services and for the purposes authorized in this Customer Agreement. Fair Isaac shall maintain and implement security procedures and controls with respect to the SaaS Service and with respect to any Client Data in accordance with Section 2.4 and shall provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access to Client Data.
3.3 Client Data Obligations. Client represents, and warrants to Fair Isaac that Client (i) has sufficient rights in all Client Data, to hold the Client Data and deliver it to Fair Isaac as required for the SaaS Service, Support Services and Professional Services to be performed as contemplated in the Agreement, (ii) has obtained from all individuals, persons and third parties any required consents and authorizations, and has provided all required notices with respect to the collection, retention, disclosure and use of the Client Data as contemplated for the purposes of the Agreement that are required under applicable laws, rules and regulations, including but not limited to privacy rules and policies, and (iii) will only provide Fair Isaac Client Data that (x) does not infringe or violate any Intellectual Property Rights, publicity, privacy, confidentiality, contractual or other rights, or any law, rule or regulation, and (y) is not defamatory, offensive, misleading, false, harmful to minors, or obscene.
4. Warranties – SaaS Service.
4.1 SaaS Service Warranty. Subject to Client’s Cooperation, Fair Isaac warrants that it will use commercially reasonable efforts to provide the SaaS Service in accordance with its Documentation in all material respects for a period of thirty (30) days following the applicable Order Form Effective Date. Client must report any breach of this warranty within thirty (30) days after such breach. For any breach of this warranty, Client’s exclusive remedy, and Fair Isaac’s entire liability, shall be at Fair Isaac’s option to use commercially reasonable efforts to: (a) re-perform the applicable SaaS Service at no additional cost; or (b) modify the SaaS Service to substantially conform to the Documentation.
4.2 Warranty Exclusions. The warranty above shall not apply (i) if the SaaS Service is not used in accordance with the Agreement or the Documentation, (ii) if the non-conformity is caused by Third Party products or services, (iii) to any modification of the SaaS Service not performed by Fair Isaac, or (iv) to any combination by Client of the SaaS Service with Third Party products or services.
4.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE IN SECTION 4.1 OF THIS CUSTOMER AGREEMENT, FAIR ISAAC DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SAAS SERVICES OR OTHERWISE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, NON-INFRINGEMENT, USAGE OR TRADE PRACTICE OR ANY REPRESENTATION REGARDING THE RESULTS TO BE ACHIEVED FROM THE USE OF THE SAAS SERVICES. FAIR ISAAC DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT IT WILL CORRECT ALL SERVICE ERRORS. CLIENT ACKNOWLEDGES THAT FAIR ISAAC DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. FAIR ISAAC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
4.4 No Liability. Client is solely responsible for results obtained from the use of the SaaS Service and for conclusions drawn therefrom, and Client acknowledges that Client is responsible for the selection of the SaaS Service to achieve Client’s intended results. Client acknowledges that it is solely responsible use of the output from the SaaS Service. Notwithstanding anything contained herein to the contrary, Fair Isaac shall have no liability to Client, its customers, employees, or any other third party arising from or related to the output of the SaaS Service or the results of such output. The foregoing shall apply regardless of whether such damage is caused by the conduct of Client and/or its Authorized Users or by the conduct of a Third Party using Client’s access credentials.
4.5 Third Party Components and External Websites. The SaaS Service may contain Third Party Software and other Third Party technology that is made available to Client as part of the SaaS Service (“Third Party Components”). Client may only access the functionality of the Third Party Components as part of and in the course of receiving the SaaS Service. Client may not make or attempt any direct access to any such Third Party Components other than in connection with its limited rights to the SaaS Service. All Third Party Components are the property of their respective Third Party suppliers, and if required under the SaaS Service Client must agree to and comply with license terms of the Third Party suppliers. Such Third Party suppliers reserve all rights to the Third Party Components, including all related Intellectual Property Rights therein. Client agrees not to contest the ownership of any Third Party Components nor use any trademark or service mark belonging to a Third Party supplier. All limitations, restrictions and obligations applicable to the SaaS Service set forth in the Agreement shall also apply to Client’s use of the Third Party Components. Further, the SaaS Service may contain links to external websites and information provided on such external websites by Third Party service providers. Fair Isaac shall not be responsible for the contents of any linked website, or any changes or updates to such sites. Client further agrees that Fair Isaac shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Client’s use of or reliance on any content, goods or services available on or through any such linked website.
PART TWO – PROFESSIONAL SERVICES.
5.1 Implementation and Related Services. The description, definitions and related terms and conditions for all Professional Services, if applicable, are provided under mutually executed Statement(s) of Work. Implementation services are Professional Services that are further described in a Statement of Work, and may include project management, connectivity and software configuration necessary to set up the SaaS Service for Client’s custom requirements; assistance with data mapping, validation and design to establish the required data feeds; and workflow design and business process consulting to optimize the SaaS Service. Certain Professional Services may be included and expressly defined as “Professional Services” under an applicable Order Form; provided, however, that pursuant to this article all such Professional Services and Deliverables are excluded from all Support Services and SLAs.
5.2 Additional Professional Services. Fair Isaac may provide Client with consulting, training, professional or other types of Professional Services related to the SaaS Service as specified in the Statement of Work, which will define the Professional Services to be performed, any Deliverables to be provided, any Assumptions (defined below), and the fees to be paid by Client. Additional Statements of Work are not effective unless they are fully executed by authorized representatives of both parties.
5.3 License to Deliverables. Subject to the terms and conditions of the Agreement, Fair Isaac grants to Client a personal, non-exclusive, non-transferable, non-sublicenseable, limited license to use the Deliverables only by authorized employees of Client; only during the applicable Subscription Term and solely for the permitted purpose of using the Deliverables in connection with the SaaS Service and Documentation as licensed above in Section 2.1 and in accordance with the Agreement. Fair Isaac is and remains the sole owner of all Intellectual Property Rights in the Deliverables.
5.4 Changes in Professional Services. Either Client or Fair Isaac may submit a request for modification of any Professional Services by email or in writing (a “Change Request”). The appropriate project managers will review the Change Request and either approve it for further investigation or reject it if they cannot mutually agree. Upon the conclusion of the investigation, Fair Isaac will prepare an estimate, and then deliver to Client a proposed agreement to change the Professional Service (a “Change Order”). The proposed Change Order will be prepared by Fair Isaac and describe the requested change, as well as the estimated additional cost and impact on schedule, if any. Client may accept the Change Order by signing and returning the Change Order to Fair Isaac.
5.5 Assumptions and Client’s Responsibilities. The applicable Statement of Work will list any assumptions and Client responsibilities (collectively, the “Assumptions”) upon which Fair Isaac has relied in agreeing to perform the Professional Services. Any deviations from, or failure of Client to meet its obligations with respect to, the Assumptions may result in additional fees and expenses and/or changes to schedules or Deliverables to the Professional Services, as determined by Fair Isaac.
5.6 Support for Deliverables. All Deliverables, including but not limited to customizations, enhancements, materials or results, or otherwise arising from any Professional Services, implementation services, whether provided under this Customer Agreement or other order form (collectively, “Non-SaaS Services”), are expressly excluded from all SLAs and Support Services. Accordingly, notwithstanding anything contained herein to the contrary, any support or maintenance obligations for such Non-SaaS Services shall only be an obligation of Fair Isaac if a definitive form of Statement of Work has been executed by both parties expressly providing for such support or maintenance.
6. Warranties – Professional Services.
6.1 Professional Services Warranty. Fair Isaac warrants that it will perform the Services in a professional and workmanlike manner conforming to generally acceptable industry practices. Client must report any breach of the foregoing warranty within thirty (30) days after completion of the applicable Professional Service that formed the basis of such breach. Upon Fair Isaac’s receipt of such a notice, Client’s sole remedy and Fair Isaac’s sole obligation and entire liability pursuant to this warranty shall be for Fair Isaac to use commercially reasonable efforts to replace personnel that formed the basis of such breach.
6.2 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE IN SECTION 6.1 OF THIS CUSTOMER AGREEMENT, FAIR ISAAC DOES NOT MAKE ANY WARRANTIES AND HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS REGARDING THE PROFESSIONAL SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
PART THREE – GENERAL.
7.1 Customer Agreement Term. Unless terminated earlier in accordance with the termination provisions contained in the Agreement, the term of this Customer Agreement commences on the Effective Date of the applicable Order Form and will continue in full force and effect for so long as there is an outstanding applicable Order Form or Statement of Work pursuant to this Customer Agreement in full force and effect.
7.2 SaaS Service Subscription Term. Client hereby agrees to subscribe to the SaaS Service and related Support Services for the duration of the full term of the subscription term for the SaaS Services set forth in the particular Order Forms (each, a “Subscription Term”). Each Order Form may be individually suspended, and, in addition to any suspension, terminated, in each case, pursuant to the provisions contained in the Order Form and Sections 7.3 and 7.4 below; in which case, unless otherwise suspended or terminated, all other Order Forms shall remain in full force and effect. Upon the effective date of termination, Client’s access to the particular SaaS Services will be terminated.
7.3 Suspension of Services. If Client fails to pay the applicable fees for the SaaS Services or Professional Services by the due date, or is in breach of Section 2.1 (SaaS Service and Documentation) or Section 2.2 (Conditions of Use), Fair Isaac may at its option immediately suspend the provision of the SaaS Services or Professional Services, provided that the foregoing does limit or modify Fair Isaac’s right to terminate for breach in addition to its right to suspend the SaaS Service or Professional Services. In addition, Fair Isaac may suspend access to or use of any portion or all of the SaaS Services immediately upon notice to Client if Fair Isaac determines: (a) use of the services (i) poses a security risk to the SaaS Services or any third party, (ii) could adversely impact Fair Isaac’s systems, the SaaS Services or the systems or content of any third party, (iii) could subject Fair Isaac or any third party to liability, or (iv) could be fraudulent; (b) Client is breach of the Agreement, including with respect to any payment obligations; or (c) Client has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. Suspension or termination (or any cancelation) does not relieve Client of any payment obligations hereunder, and all such obligations remain in full force and effect. Accordingly, if Fair Isaac suspends access to or use of any portion or all of the SaaS Services Client remains responsible for all fees and charges incurred during the period of suspension, and Client will not be entitled to any refunds or credits for any period of suspension.
7.4 Termination. FICO may terminate any Order Form for any reason by providing Client at least 30 days’ advance notice. Either party may terminate an Order Form for cause if the other party is in material breach of the Order Form (or the terms of this Customer Agreement) and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. FICO may also terminate the Agreement immediately upon notice to Client (A) for cause if we have the right to suspend under Section 7.3, (B) if our relationship with a third-party who provides goods or services FICO uses to provide the Fair Isaac Products or Services expires, terminates or requires changes in the way FICO provides or uses such goods or services in connection with the Fair Isaac Products or Services, or (C) in order to comply with any law, rule or regulation, or requests of governmental or regulatory entities.
7.5 Effect of Termination or Expiration. Upon termination or expiration of any Order Form for any reason: (i) all licenses granted to Client under the Agreement related to that Order Form will terminate immediately, as will all Fair Isaac support and maintenance obligations; (ii) Client shall immediately cease all use of an access to all applicable Fair Isaac Product(s), Services and related documentation; (iii) Client shall either (a) irretrievably destroy all copies of the applicable Fair Isaac Product(s), related documentation, and other related Fair Isaac Confidential Information and Intellectual Property in Client’s possession; or (b) at Fair Isaac’s option, return to Fair Isaac all copies of the same; (iv) Client shall provide to Fair Isaac a written certification signed by an authorized officer of Client certifying that Client has complied in full with the foregoing; and (v) all fees and other charges provided for in this Agreement or in any applicable Order Form will become immediately due and payable.
7.6 Return or Deletion of Data. Upon termination or expiration of Client’s SaaS Service under an applicable Order Form, Fair Isaac will provide Client with an opportunity to download all Client Data or Fair Isaac will download (at Fair Isaac’s option) in a mutually agreed upon format, or cooperate with Client to destroy or return all Client Data; provided, however, Fair Isaac may retain Client Data in backup media, which will be destroyed as part of Fair Isaac’s normal archive tape pool management process. Client acknowledges that Fair Isaac has no obligation to retain Client Data after termination of the applicable Order Form for a SaaS Service and subject to the foregoing in this paragraph, Client Data may be irretrievably deleted thirty (30) days following termination of the applicable Order Form, after which time Fair Isaac will have no obligation to provide any Client Data.
7.7 Professional Services. The term for a Statement of Work shall be defined therein or if a term is not provided, the period of time required for Fair Isaac to complete performance of the Professional Services provided under such Statement of Work.
7.8 English Language. All SaaS Service, Documentation, Deliverables, correspondence and related materials to the foregoing as contemplated in the Agreement are provided in English only.
7.9 Survival. The following provisions of this Customer Agreement will survive any termination or expiration of this Customer Agreement: Sections 2.2, 2.3, 2.4, 3.1, 3.3, 4.3, 4.4, 6.2, 7.3, 7.4, 7.5, 7.6, 7.7, Article 8 (except for Section 8.6), Article 9, and Article 10.
8.1 Fees and Invoicing.
(a) Credit or Debit Card Payments. For all orders purchased with a credit or debit card, Client is required to keep valid billing contact and credit or debit card account information on file for Client’s account in the Marketplace. To view or change billing contact and credit or debit card account information on file, visit the “Billing Info” area of the “Manage Account Dashboard Page” on the Marketplace or edit/update billing details during order checkout. Client authorizes Fair Isaac to charge Client’s credit or debit card in accordance with the terms of the Agreement, and store Client’s credit or debit card information to perform other functions related to providing the product(s) or services that Client ordered or may in accordance with those terms. For any payments charged to Client’s credit card from the Marketplace, Fair Isaac Corporation (or the Fair Isaac affiliate specified in the Order Form) on Client’s statement details for the charge. If Client’s credit card account on file changes, expires, is deactivated, is canceled, or becomes invalid for any reason, Client is solely responsible for updating its billing information with valid billing contact and credit card account information. If Client cannot update such billing information, Client shall promptly notify Fair Isaac and arrange for an alternative payment method acceptable to Fair Isaac.
(b) Manual Payment Terms. For all orders purchased with a manual payment method, Client will be contacted by a Fair Isaac sales representative who will gather payment information (e.g., credit card information, ACH direct debit information, a valid purchase order, or alternative payment acceptable to Fair Isaac). In addition to the payment information, the Fair Isaac sales representative will work with Client to attempt to finalize additional order details, if any, agreed upon by the parties, all of which will be set forth in a separate written agreement between the parties and Client’s order in the Marketplace will be completed based on the details in such agreement.
(c) Subscription Orders. Once an order for a SaaS Service is completed, a Subscription for the SaaS Service will be created for Client. A “Subscription” grants Client access to and use of the SaaS Service on the Site for the Subscription Term to the extent expressly provided in Section 2.1 above. SaaS Services are generally provided as one of the following Subscription types, as described in Client’s order:
(i) Trial (Trial may be suspended or deactivated without notice if Client exceeds any limits of the Trial.);
(ii) One Time Purchase (“One Time Purchase” means a Subscription provided for a single pre-paid upfront payment, for a limited Subscription Term as set forth in the applicable order.);
(iii) Single Month Commitment (“Single Month Commitment” means a monthly Subscription provided for a pre-paid upfront monthly fee and that automatically renews on a month to month basis unless canceled.);
(iv) Multiple Month Commitment (“Multiple Month Commitment” means a Subscription for a fixed initial period of more than one month (e.g., 3 months, 6 months, 12 months) provided for a pre-paid upfront fee for the initial period and that automatically renews for renewal periods of the same duration and for a pre-paid upfront fee for each renewal period unless canceled. Multiple Month Commitments may require manual payment.); or
(v) Usage Based Charges (A “Usage Based Charges” means a monthly usage-based Subscription where usage is recorded during each billing cycle, aggregated and invoiced and paid monthly at the end of each billing cycle.)
(d) Subscription Orders; Upgrades; Downgrades. Once an order for a SaaS Service is completed, a Subscription for the SaaS Service will be created for Client. A “Subscription” grants Client access to and use of the SaaS Service on the Site for the Subscription Term to. Except as otherwise provided, Trials and Single Month Commitments can be changed (i.e., upgraded, or downgraded) through in the “Manage Account Dashboard Page” on the Marketplace. If Client upgrades its Subscription to an upgraded edition, if any, available for the particular SaaS Service within a particular billing cycle, Client will be charged a prorated amount for the upgrade and the billing cycle will automatically reset based on the upgraded edition terms and the upgrade checkout date for the upgrade order in the Marketplace. If Client downgrades its Subscription to a downgraded edition, if any, available for the particular SaaS Service within a particular billing cycle, Client will be charged a prorated amount for the downgrade and the billing cycle will automatically reset based on the downgraded edition terms and the downgrade checkout date for the downgrade order in the Marketplace.
(e) CANCELLATION POLICY. Trials, One Time Purchases, and Single Month Commitments can be canceled at any time with no cancelation fee using the “Manage Account Dashboard Page” on the Marketplace. When Client cancels any Subscription, Client will no longer have use of or access to the SaaS Service upon cancelation. No refunds will be provided for canceled Subscriptions and, without limiting anything provided in Section 7.5, upon cancelation, all accumulated usage based charges will become immediately due and payable.
(h) OWNER AND OPERATOR OF THIS WEBSITE:
Fair Isaac Corporation
181 Metro Drive
San Jose, CA 95110 USA
(g) CONTACT INFORMATION. CONTACT INFORMATION FOR MARKETPLACE SERVICE ISSUES INCLUDING QUESTIONS ABOUT PAYMENTS OR CHARGES:
Attention: FICO Analytic Cloud
3661 Valley Centre Drive, Suite 500
San Diego, CA 92130 USA
+ 1 (858) 369 – 8277
Support Center URL: https://www.ficoanalyticcloud.com/login-init?setRedirect=https://www.ficoanalyticcloud.com/resources/request-support/
Contact Support URL: https://www.ficoanalyticcloud.com/resources/contact-us/
(h) Invoices and Payments. All fees and charges (other than expenses) will be set forth in the applicable Order Form. Except as otherwise provided, all fees, charges, and expenses must be paid within 30 days of the date of an invoice. All amounts are payable in US Dollars or the currency stated in the applicable Order Form in accordance with the instructions provided in the invoice or other instructions provided by Fair Isaac. Without prejudice to its other rights and remedies, if Fair Isaac does not receive any payment by its due date, Fair Isaac may assess a late payment charge on the unpaid amount at the rate of 1% per month or the highest rate allowed under applicable law, whichever is less. Client shall reimburse Fair Isaac for all reasonable costs related to any proceedings to collect any past-due amounts, including without limitation attorneys’ fees and expenses. Fair Isaac reserves the right to require Client to provide a letter of credit in an amount and a form specified by Fair Isaac, where Fair Isaac deems it necessary. Except as otherwise expressly provided in an Order Form, no refunds are available.
8.2 Expenses. Prices do not include reasonable travel and associated out-of-pocket expenses incurred by Fair Isaac in connection with this Agreement, which Client may agree, in the applicable Order Form, to reimburse at Fair Isaac’s actual cost.
8.3 Taxes and other Charges. Unless otherwise stated in the applicable Order Form, all charges under the Agreement are stated exclusive of any applicable Taxes, and Client is solely responsible for, and shall pay or reimburse Fair Isaac for, all Taxes. Fair Isaac shall promptly remit to the appropriate tax authority all Taxes collected from Client on account of Client’s tax obligations, if any, and Fair Isaac shall indemnify Client against any and all losses, costs, and expenses (including reasonable attorneys’ fees) which result from Fair Isaac’s violations of its obligations under this section. If Fair Isaac receives a refund of Taxes attributable to amounts paid by Client under the Agreement, Fair Isaac shall pay the refunded amount to Client within 30 days of its receipt. To the extent Client is required by applicable tax law to withhold income Taxes on any payment made to Fair Isaac, Client may withhold such Taxes to the extent such Taxes (i) do not exceed the appropriate withholding amount under relevant tax law or, if applicable, the income tax treaty between the country in which Fair Isaac is incorporated and the country in which Client is incorporated or is receiving the Fair Isaac Products or Fair Isaac services, as applicable, and (ii) qualify as a creditable foreign income tax for Fair Isaac under applicable law. Client shall send Fair Isaac the appropriate certified tax receipt or other acceptable documentation suitable for Fair Isaac to obtain a foreign income tax credit promptly upon payment of such Taxes or as required under the laws applicable to Client. If Fair Isaac does not receive a certified tax receipt issued by the taxing authority evidencing such payment, or other such acceptable documentation suitable for Fair Isaac to obtain a foreign income tax credit, within 30 days after the later of: (1) the date of the invoice or (2) when required to be issued under the law applicable to Client, Client will be responsible for paying the full invoice amount to Fair Isaac.
8.4 Price Adjustments. Unless otherwise provided in the applicable Order Form or Statement of Work, all fees and charges due under this Customer Agreement will be reviewed and adjusted by Fair Isaac upon each anniversary of the Subscription Effective Date (as defined in the applicable Order Form), including each year during the applicable Subscription Term.
8.5 Fair Isaac Audit Rights; Inspection. Client shall maintain adequate books, records, and accounting practices and systems that will allow for an audit by Fair Isaac of compliance with the terms and conditions of the Agreement by Client and that will facilitate auditing of such books, records, and systems (including without limitation all reports, analysis and other documentation necessary for Fair Isaac to verify the usage volume and fees owed by Client). Upon at least 5 days’ prior written notice, Fair Isaac will have the right to audit all records and information of Client relating to the Agreement. Client shall cooperate with Fair Isaac in conducting such audit. If Client is discovered to have underpaid any amounts owed to Fair Isaac, or if Fair Isaac learns that Client has materially breached the Agreement, then Client shall promptly pay to Fair Isaac the amount of any underpayment, as well as all reasonable costs of the audit.
8.6 Security Audit. This Section 8.6 only applies if Client provides Fair Isaac with Client Data. If Client requests a Security Audit (defined below), then Client agrees and acknowledges the following process and criteria must be satisfied before Fair Isaac is obligated to grant a Security Audit request: (a) Client will provide thirty (30) days advance written notice to Fair Isaac with the Security Audit request that shall include reasonable details of the requested Security Audit, (b) Client is limited to one (1) Security Audit within a 12 month period, (c) Client will pay for all Fair Isaac’s time spent in connection with efforts to support Client’s Security Audit at Fair Isaac’s then-current hourly rates, plus any out-of-pocket expenses, and (d) a mutually agreed upon form of Statement of Work is executed between the parties, that shall define the obligations and commercial terms between the parties with regard to the Security Audit Requested. “Security Audit” means an assessment of Fair Isaac’s security practices, procedures, infrastructure, standards, compliance, and/or performance, which may include compilation of answers to Client questionnaires, participation in detailed discussions with Client’s security team or third party auditors, and/or facilitation of on-site visits to Fair Isaac owned facilities.
9. Other Rights and Obligations.
9.1 Reservation of Rights. Notwithstanding anything contained in the Agreement to the contrary and subject only to the limited license expressly granted to Client in Sections 2.1 (SaaS Service and Documentation) and 5.3 (License to Deliverables), Fair Isaac reserves all rights (including Intellectual Property Rights) in and to the Fair Isaac Property. Client acknowledges and agrees that: (i) the Fair Isaac Property, all rights therein, and the goodwill associated therewith, are, and shall remain, the sole and exclusive property of Fair Isaac; (ii) it shall take no action which will adversely affect Fair Isaac’s exclusive ownership of the Fair Isaac Property, or the goodwill associated with the Fair Isaac Property; and (iii) any and all goodwill arising from use of the Fair Isaac Property by Client shall inure to the benefit of Fair Isaac. Nothing herein shall give Client any right, title, or interest of any kind in or to any Fair Isaac Property, except the right to use the SaaS Service and Deliverables as expressly set forth in the Agreement, and Client shall not contest the validity of, or Fair Isaac’s title in and to, the Fair Isaac Property. Fair Isaac Property and Third Party Software shall, in each case, be deemed Confidential Information of Fair Isaac.
9.2 Protection of Confidential Information.
(a) Purpose for Disclosure. Recipient may use Confidential Information of the Discloser only for the purposes of exercising Recipient’s rights and fulfilling Recipient’s obligations under the Agreement.
(b) Exceptions. Recipient’s obligation under the Agreement to treat information as Confidential Information does not apply to information that: (i) is already known to Recipient at the time of disclosure and was not obtained, directly or indirectly, from Discloser; (ii) is independently developed by Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is obtained by Recipient from another source without a breach of any obligation of confidentiality owed by that source to Discloser; or (iv) is or becomes publicly available through no wrongful act of Recipient or any party that obtained the information from Recipient. If Recipient is served with a subpoena or other legal process, court, or governmental request or order requiring disclosure, or is otherwise required by law or securities exchange requirement to disclose, any of Discloser’s Confidential Information, Recipient shall, unless prohibited by law, promptly notify Discloser of that fact and cooperate fully (at Discloser’s expense) with Discloser and its legal counsel in opposing, seeking a protective order, seeking to limit, or appealing the subpoena, legal process, request, order, or requirement to the extent deemed appropriate by Discloser. Recipient may comply with the subpoena or other legal process or requirement after complying with the foregoing sentence, but only to the extent necessary for compliance. A non-public disclosure made pursuant to the foregoing sentence will not, by itself, remove any Confidential Information from the protections of the Agreement.
(c) Limitations on Disclosure and Use. Recipient shall use the same degree of care, but no less than a reasonable degree of care, to protect against the unauthorized disclosure or use of Discloser’s Confidential Information as it uses to protect its own confidential information of a similar type. Recipient shall disclose Confidential Information of Discloser only to its employees or independent contractors who have a need to know for the above stated purpose, and who are bound by obligations of confidentiality no less restrictive than the terms of the Agreement. Recipient shall not remove any confidentiality or proprietary notices from Discloser’s Confidential Information. If Recipient provides Discloser with comments, suggestions or other input regarding Discloser’s Confidential Information or Intellectual Property, Discloser will have an unrestricted, worldwide, royalty-free right to use those comments, suggestions, or other input for any purpose and in any manner, and to authorize others to do so.
(d) Injunctive Relief. Notwithstanding anything in Section 10.4, the parties acknowledge that the remedies at law available for the protection of Confidential Information or Intellectual Property may be inadequate, and, without limiting any rights available at law, each party is entitled to seek injunctive relief for any breach of the Agreement relating to the protection of its Confidential Information or Intellectual Property Rights.
9.3 Client Indemnity. Client agrees to and will defend, hold harmless and indemnify Fair Isaac (and its affiliates) and its and their directors, officers, employees, affiliates and agents (“FICO Indemnitees”) against any and all claims, demands or actions (“Claims”) and all losses, damages, liabilities, costs and expenses, including without limitation, legal fees and costs incurred by FICO Indemnitees that arise out of or relate to such Claims (collectively, “Damages”) in connection with: (a) any breach of Section 2.2 (Conditions of Use); (b) any breach of Section 3.3 (Client Data Obligations); or (c) Client’s use of the SaaS Service, Documentation, Support Services, Professional Services and Deliverables hereunder. The foregoing shall apply regardless of whether such damage is caused by the conduct of Client and/or its Authorized Users or by the conduct of a Third Party using Client’s access credentials. Without limiting the foregoing, Client will pay those Damages described above in any such action, or those Damages agreed to in a monetary settlement of such action, including without limitation all reasonable attorneys’ fees incurred by Indemnities or their agents in any related enforcement or defense action. Fair Isaac will notify Client promptly of any such Claim and give Client sole control over the defense thereof unless Client breaches its defense obligations, in which event Fair Isaac may defend the claim at the expense of Client.
9.4 Intellectual Property Indemnification. Unless otherwise indicated in an Order Form, and subject to the conditions below, Fair Isaac shall defend at its own expense any action against Client brought by a third party to the extent the action is based upon a claim that a Fair Isaac Product listed in an Order Form directly infringes any U.S. issued patent or copyright, or misappropriates any trade secret recognized under the Uniform Trade Secrets Act, and Fair Isaac will pay those costs and damages finally awarded against Client in the action that are specifically attributable to that claim, or those costs and damages agreed to in a monetary settlement of the action that are specifically attributable to the claim.
(a) Conditions. To be entitled to indemnification under this Customer Agreement, Client must: (i) notify Fair Isaac promptly in writing of the action; (ii) give Fair Isaac sole control of the defense of the action and any related settlement negotiations; (iii) cooperate, as Fair Isaac may reasonably request, in defense or settlement negotiations; and (iv) be and remain in compliance with the material terms of the Agreement.
(b) Options. If any Fair Isaac Product becomes, or in Fair Isaac’s opinion is likely to become, the subject of a claim subject to indemnification under the Agreement, Fair Isaac may, at its option and expense, either: (i) procure for Client the right to continue to exercise the Fair Isaac Product license; (ii) replace or modify the Fair Isaac Product so that it becomes non-infringing; or (iii) if neither option (i) or (ii) is available on reasonable terms, terminate Client’s license or subscription for the Fair Isaac Product concerned. Unless otherwise provided in the applicable Order Form, if Fair Isaac exercises option (iii), Fair Isaac will refund to Client the unearned portion of any prepaid SaaS Service subscription fees and support and maintenance fees.
(c) Exclusions. Fair Isaac has no obligation with respect to any claim based upon: (i) any violation of the terms of Client’s license; (ii) any combination or use of any Fair Isaac Product with other products, equipment, software, or data not supplied or approved in writing by Fair Isaac; (iii) any modification of a Fair Isaac Product made pursuant to Client specifications or any other modification made by any entity other than Fair Isaac or its Affiliates; (iv) any claim that would have been avoided had Client upgraded to a new version or release of the Fair Isaac Product made available by Fair Isaac to Client; or (v) any unauthorized use or the Fair Isaac Product or use other than in accordance with the Documentation.
(d) ENTIRE LIABILITY. THIS SECTION 9.4 STATES FAIR ISAAC’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS.
9.5 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THIS SECTION 9.5 SHALL GOVERN THE AGREEMENT (INCLUDING ALL APPLICABLE ORDER FORMS AND ALL PRODUCTS AND SERVICES HEREUNDER). EXCEPT FOR CLIENT’S BREACH OR VIOLATION OF FAIR ISAAC’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BREACH OF ANY LICENSE GRANT OR RESTRICTIONS FOR ANY PRODUCT OR SERVICE):
(A) NEITHER PARTY SHALL BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST, STOLEN, MISAPPROPRIATED OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT, UNDER ANY AND ALL THEORIES OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, AND STRICT LIABILITY), WILL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT FOR THE PARTICULAR SAAS SERVICE OR SERVICES UNDER THE APPLICABLE ORDER FORM TO WHICH THE CLAIM(S) RELATE(S) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE MOST RECENT CLAIM THAT GAVE RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, CLIENT’S OBLIGATION TO PAY ALL AMOUNTS OWED TO FAIR ISAAC FOR THE SAAS SERVICE AND OTHERWISE HEREUNDER (INCLUDING COSTS OF COLLECTION OF UNPAID AMOUNTS) IS INDEPENDENT OF AND NOT SUBJECT TO THE LIMITATIONS IN THIS SECTION 9.5.
NOTWITHSTANDING ANYTHING ELSE PROVIDED, IN NO EVENT WILL FAIR ISAAC (INCLUDING ITS AFFILIATES AND LICENSORS) BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH ANY: (A) INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THE AGREEMENT OR USE OF OR ACCESS TO THE FAIR ISAAC PRODUCTS OR SERVICES, (II) DISCONTINUATION OF ANY OR ALL OF THE FAIR ISAAC PRODUCT OR SERVICES, OR, (III) WITHOUT LIMITING OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES; (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CLIENT OR OTHERWISE IN CONNECTION WITH THE AGREEMENT OR USE OF OR ACCESS TO ANY FAIR ISAAC PRODUCTS OR SERVICES; OR (D) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CONTENT OR DATA, INCLUDING CLIENT DATA.
9.6 Client Mergers and Acquisitions. The parties agree that in the event Client is merged with, acquired by or acquires another entity, or otherwise acquires the rights to process the accounts of another entity, that Fair Isaac and Client will discuss in good faith the fees to be payable to Fair Isaac due to increased volume and proposed usage of the SaaS Service. Client agrees it will not process any data from such other entity (either combined with Client, or as a separate portfolio) through the SaaS Service, Support Services and/or Professional Services unless and until Fair Isaac and Client have negotiated and agreed to an amount for such additional fees, which shall be reflected in a mutually agreed upon Order Form or amendment to the applicable Order Form, entered into by the parties. Additionally, if Client requires any additional Professional Services or Support Services from Fair Isaac as a result of any of the above-described events, then such Professional Services or Support Services will be provided pursuant to an executed Statement of Work by Fair Isaac and Client, subject to Client’s payment to Fair Isaac of all additional charges and fees, which shall be based upon Fair Isaac’s then-standard time and material rates (unless the parties otherwise agree to a different fee schedule in such Statement of Work).
9.7 Delegation. Fair Isaac has the right to (i) delegate the performance of the Agreement, in whole or in part, to a Fair Isaac Affiliate or to a Fair Isaac contractor in any jurisdiction worldwide; and (ii) disclose to those Fair Isaac Affiliates or contractors any data or other information received from, on behalf of, or through Client that Fair Isaac deems appropriate for the performance of the delegated activities, including but not limited to data and other information (including personally identifiable information if required for the SaaS Service) about Client’s customers; but Fair Isaac must require the Fair Isaac Affiliate or contractor to adhere to all license restrictions and obligations of confidentiality imposed by the Agreement upon Fair Isaac with respect to that data and other information.
9.8 Limitation of Actions. No action, regardless of form, arising out of or relating to the Agreement may be brought by Client more than two years after the cause of action has accrued.
9.9 Entire Agreement; Conflict. The Agreement (including all incorporated documents) constitutes the complete and exclusive agreement of the parties and supersedes all prior or contemporaneous agreements, proposals, understandings, representations, conditions, and communications (oral or written), as well as the terms of all existing or future purchase orders and acknowledgments. Any other terms, conditions, supplements, modifications, or amendments to the will not be binding upon either party unless expressly set forth in a written agreement entered into by authorized representatives of Client and Fair Isaac. In the case of any conflict between the provisions of this Customer Agreement and any Order Form, with respect to the subject matter of that Order Form, the provisions of the Order Form control.
9.10 Export. In addition to the requirements contained in the applicable Order Form, Client will not export or re-export, directly or indirectly, any SaaS Service, Documentation, Fair Isaac Product, Fair Isaac Confidential Information or Deliverables to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations (Title 15 of the U.S. Code of Federal Regulations part 730 et seq.), and the U.S. trade embargo regulations (Title 31 of the U.S. Code and Federal Regulations Part 500 et seq.).
9.11 Relationship of the Parties. The relationship between the parties is that of independent contractors. This Customer Agreement is not to be construed as creating any partnership, joint venture, agency, or any other form of legal association that would impose liability upon one party for the act or failure to act of the other party.
9.12 Press Releases; Publicity. Fair Isaac may issue a press release stating factual information regarding the relationship between Fair Isaac and Client at the time this Customer Agreement or any Order Form is signed. The parties may issue additional press releases as mutually agreed by the parties. All press releases or other publicity sought to be issued by Client pursuant to this section must, prior to release, be reviewed and approved by each party, which approval may not be unreasonably withheld or be delayed more than 5 business days. Fair Isaac may include Client’s name in its marketing and promotional materials regarding the availability of any of its products or services to others.
9.13 No Waiver. No delay or omission by either party in exercising any right under the Agreement will be construed as a waiver of that right. Even if either party waives a breach or default under the Agreement, that party is not deemed to have waived any later or similar breach or default. No waiver will be effective unless in writing and signed by the party waiving the right.
9.14 Governing Law. The Agreement, and any issues arising under or in any way relating to the Agreement, will be governed by and construed in accordance with the laws of the State of New York, USA, without regard to principles of conflicts of law or international law, including without limitation the 1980 United Nations Convention on Contracts for the International Sale of Goods, as revised, which the parties expressly agree does not apply to the Agreement.
9.15 Notices. Any notices required to be given in writing by Client under the Agreement must be sent to the address or facsimile (fax) number for notices set forth below. Written notices must be sent by personal delivery, mail (with return receipt provided), major overnight delivery carrier (with return receipt provided), or fax (only if a fax number is provided below). Notices will be deemed given on the actual date of delivery, as indicated by a delivery receipt or fax confirmation, but any notice delivered by fax must be promptly confirmed in writing using another method for giving notice provided in this section. Fair Isaac may change its address or facsimile number for notices at any time by giving written notice to the other party as provided in this section.
For notices to be sent to Fair Isaac:
Fair Isaac Corporation
Attention: Contracts Administration
3661 Valley Centre Drive
San Diego, CA 92130
Fair Isaac may provide any notice to Client under the Agreement by: (i) posting a notice on the Site; or (ii) sending a message to the email address then associated with Client’s account; or (ii) sending a notice to a physical address then associated with Client’s account. Notwithstanding anything else provided, all notices Fair Isaac provides by posting on the Site will be effective upon posting and all other notices Fair Isaac provides will be effective when sent, whether or not actually received. Client acknowledges that it is Client’s responsibility to keep its email address on its account current.
9.17 Force Majeure; Cooperation. Notwithstanding anything to the contrary in the Agreement, except for Client’s obligations to pay amounts due under the Agreement, neither party will be deemed to be in default of any provision of the Agreement for any delay, error, failure, or interruption of performance due to any act of God, terrorism, war, insurrection, riot, boycott, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, problems with the Internet, epidemic, act of any other person not under the control or direction of either party, or other similar cause. The party subject to any of the foregoing causes shall give the other party reasonable written notification of any resulting material or indefinite delay. In addition, Client acknowledges that Fair Isaac’s performance under the Agreement is dependent on Client’s Cooperation.
9.18 No Third Party Beneficiaries. Nothing in the Agreement is to be deemed to create any right or benefit in any person not a party to the Agreement.
9.19 Article and Section Headings. The article and section headings in the Agreement are for reference only, and do not form part of the Agreement.
9.20 Construction; Severability. The Agreement is not to be more strongly construed against either party, regardless of who is more responsible for its preparation. If any provision of the Agreement is held to be unenforceable, unlawful, or invalid in any respect, then that provision will be deemed ineffective only to the extent of the illegality or invalidity, without invalidating the remainder of that provision or any of the remaining provisions of the Agreement. If a provision is determined to be unlawful or invalid in any respect, then that provision is to be deemed severable to the extent it is unlawful or invalid, and the enforceability, validity, and lawfulness of the remaining portion of that provision or any other provision of the Agreement will not be impaired.
10. Other Provisions
10.1 Import Licenses. Client is responsible for (i) obtaining all licenses, permits, or approvals that may be required to import any products and/or services into the country of designated delivery, (ii) clearing any Fair Isaac products or services through customs promptly upon their arrival in the country of designated delivery, and (iii) paying any Taxes relating to the foregoing. At Fair Isaac’s request Client shall provide Fair Isaac with copies of all relevant import and customs clearance documentation relating to products or services provided under the Agreement. Fair Isaac will not be required to deliver any products or provide services to locations, persons, and/or entities prohibited by applicable export laws and regulations.
10.2 Export/Re-export Restrictions. In addition to any applicable license restrictions contained in the Agreement, Client acknowledges that products, related technical data, and technical support services are subject to compliance with U.S. laws and regulations that restrict export and Re-export of software, technical data, and services (including “deemed export”), and that diversion contrary to such laws and regulations is prohibited by law. Client shall comply with all applicable U.S. and local export control laws and obtain proper export licenses before Re-export of products and/or related technical data provided under the Agreement. Without limiting the foregoing, Client shall not knowingly transfer or supply any products or services provided under the Agreement to any person, company, or entity prohibited by or located in countries prohibited by U.S. export law. Further information regarding US export laws can be found at www.bis.doc.gov. “Re-export” means an actual shipment (if on physical media such as CD) or other transmission (e.g., downloaded over the Internet, emailed, etc.) of products and/or technical data from the country of original delivery destination to another foreign country, person, or entity.
10.3 Corrupt Practices. Client represents that, in connection with the Agreement, neither it nor anyone acting on its behalf has made or agreed to make any payment, gift, or other consideration, directly or indirectly, to or for the benefit of anyone who is a director, officer, employee, shareholder, or agent of Client; or who is in any manner connected with, any government or governmental entity; or who is an officer, agent, or employee of a political party; or who is a candidate for political office, where the payment, gift, or other consideration would be illegal under the applicable laws of the United States or any other country. The foregoing is a continuing representation, and, in addition to any other remedies Fair Isaac has, any failure of this representation to be true at any time is grounds for immediate termination of the Agreement by Fair Isaac.
10.4 RESOLUTION OF DISPUTES; MANDATORY AND BINDING ARBITRATION. ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THE AGREEMENT, OR THE PERFORMANCE, BREACH, VALIDITY, INTERPRETATION, APPLICATION, OR TERMINATION THEREOF, INCLUDING WITHOUT LIMITATION ANY DISPUTE CONCERNING THE SCOPE OF THIS ARBITRATION CLAUSE (EACH, A “DISPUTE”), MUST BE REFERRED TO AND FINALLY RESOLVED BY BINDING ARBITRATION CONDUCTED IN MINNEAPOLIS, MN, USA, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH THE THEN-CURRENT AAA ARBITRATION RULES, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT HAVING JURISDICTION. THE ARBITRATION IS TO BE CONDUCTED IN ENGLISH. THE ARBITRATOR(S) SHALL DETERMINE THE MATTERS AT ISSUE IN THE DISPUTE IN ACCORDANCE WITH THE GOVERNING LAW SPECIFIED IN THIS CUSTOMER AGREEMENT.
10.5 Waiver of Sovereign Immunity. If Client is a sovereign state or a state agency, or otherwise capable of invoking a defense of sovereign immunity with regard to any dispute under the Agreement, then Client hereby irrevocably waives any claim to immunity with regard to any proceedings in connection with an arbitration or arbitral award pursuant to the Agreement, including, without limitation, immunity from service of process, immunity from pre-judgment or post-judgment attachment or similar remedy, immunity from the jurisdiction of any court, and immunity from execution of any of its property.
10.6 Language of the Contract and Notices. The Agreement has been executed in the English language. Any version of the Agreement in any other language is solely for the convenience of the parties and will have no binding force or effect. Any notices given pursuant to the Agreement must be in English. In case of a dispute concerning the intent, obligations, or performance of the parties under the Agreement, this English language text alone must be used to resolve the dispute, and any proceedings or communications relating to such dispute must be in English.
PART FOUR – DEFINITIONS.
“Affiliate” of a party means any other person or entity that, directly or indirectly, controls, is controlled by or is under common control with such party; “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of another person or entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means, collectively, the Customer Agreement and each Order Form (including all documents incorporated therein).
“Authorized User” means an employee of Client using or authorized to use the SaaS Service for and on behalf of Client, for whom Client is responsible, who is bound by the obligations of confidentiality and other restrictions set forth in the Agreement, and who has been issued a user identification number and user password by Client for use of the SaaS Service.
“Client Data” collectively means all information, data, consumer records, customer information, purchase information, merchant information, return information, content or other operational data that is provided by or on behalf of Client to Fair Isaac for Fair Isaac to perform the SaaS Service or the Services, as applicable, hereunder.
“Confidential Information” means financial, business and/or technical information of the Discloser, regardless of the form or manner in which the information is disclosed or learned, including, but not limited to, marketing and product plans, ideas, concepts, business plans, employees and employee information, inventions, algorithms, decision technology and/or models, processes, designs, specifications, drawings, samples, improvements, developments, applications, engineering, manufacturing and marketing data and plans, software code (object and source code), documentation (including without limitation manuals, training materials, and presentations), and functionality, security procedures and approaches, know-how, customer names and information, experimental work, distribution arrangements and trade secrets and other information marked confidential by the Discloser.
“Cooperation” means Client’s general cooperation and providing access to information that is reasonably required to allow Fair Isaac to perform its obligations under the Agreement, including without limitation: (i) providing data and materials in the format and according to the specifications required by Fair Isaac, (ii) for onsite services, providing Fair Isaac with necessary access to office accommodations, facilities, equipment, security access information, and software interfaces to Client’s other business applications; (iii) providing personnel assistance as is reasonably requested by Fair Isaac at any time; (iv) complying with all terms, conditions, and requirements set forth in the Agreement; and (v) cooperating with Fair Isaac to make decisions and communicate information in a timely manner. For avoidance of doubt, “Cooperation” includes the terms of Section 1.3, all Assumptions, dependencies, conditions and other Client responsibilities necessary for Fair Isaac to provide the SaaS Service, Support Services and Professional Services in accordance with the applicable Order Form(s) and Statement(s) of Work.
“Data Center” means the Fair Isaac data center, managed infrastructure at a Fair Isaac contracted service provider’s data center(s), or other facility, where the servers host the Fair Isaac Product and Client Data (if applicable) for Client to use of the SaaS Service described in an applicable Order Form.
“Deliverable” means any analyses, documentation, reports or other work product or deliverable(s) created by Fair Isaac for Client in performing the Professional Services that is defined as a deliverable under a Statement of Work.
“Discloser” means a party that discloses or provides Confidential Information pursuant to the Agreement.
“Documentation” means the standard generally available technical manuals, specifications, instructions, user guides and other written materials, whether printed or electronic form and amended from time to time, that relate to the SaaS Service within a particular Order Form, and if applicable, the Fair Isaac Software.
“Fair Isaac Product” means, collectively, the (a) SaaS Service, (b) Documentation, and (c) Fair Isaac Software.
“Fair Isaac Property” includes, without limitation: Fair Isaac Products, Fair Isaac Software, SaaS Service, Models, Documentation, Deliverables, Components, and other Fair Isaac products and services; all other inventions, models, products, ideas, concepts, work product, materials and know-how related to any of the foregoing; all enhancements, improvements, adaptations, translations, derivatives and modifications of any kind whatsoever to any materials of Fair Isaac, including any of the foregoing, and any redevelopments of any of the foregoing, and any ideas derived from any of the foregoing, even if created by or at the request of Client; and any and all Intellectual Property Rights embodied in or associated with any of the foregoing.
“Fair Isaac Software” means Fair Isaac’s and its Affiliates’ proprietary Software and Models, as further described in an applicable Order Form. Fair Isaac Software excludes all Third Party Software.
“Intellectual Property” or “Intellectual Property Rights” means rights associated with all or any of the following anywhere in the world, whether or not filed or registered: (i) patents, patent applications, and inventors’ certificates; (ii) copyrights (including moral rights and author’s rights), works of authorship, copyright registrations and applications; (iii) database rights; (iv) know-how, trade secrets, and rights in and to confidential information; (v) industrial designs (including utility models); (vi) trademarks, trade names, service marks, logos, Internet addresses (URLs), and the goodwill associated with them; (vii) semi-conductor topography rights; (viii) rights of publicity; and (ix) divisions, continuations, renewals, reissuances and extensions of any of the foregoing (to the extent applicable); and (x) any other proprietary rights relating to intangible property anywhere in the world.
“Intended Purpose” means the internal business purpose of Client that is defined in the applicable Order Form and for which use of the SaaS Service is permitted.
“Lower Environment” means the platform, hardware and systems environment which provides support, as described below, to the Production Environment for the SaaS Service. The Lower Environments are more dynamic in nature than the Production Environment and provide the grounds to prepare applications for the Production Environment.
“Model” means, individually or collectively as the context requires, the predictive or descriptive algorithms and/or equations developed by Fair Isaac and from which a score, cell assignment, segmentation and/or decision logic can be generated based on the application of Client Data. Model(s) includes both the process of applying the Client Data, as well as the predictive, neural or descriptive algorithms and equations, and scores or other output therefrom.
“Production Environment” means the platform, hardware and systems environment located at Fair Isaac’s Data Center from which Fair Isaac provides the applicable SaaS Service under the terms and conditions of the Order Form and applicable Order Form. The Production Environment excludes the Lower Environment.
“Professional Services” means the implementation services, consulting, training or any other professional services defined and performed by Fair Isaac under the terms of a Statement of Work. Professional Services excludes SaaS Service and Support Services.
“Recipient” means a party that receives Confidential Information of Discloser pursuant to the Agreement.
“SaaS Service” means, as described in Section 1.2 and as further described in the applicable Order Form, the software as a service, hosting, cloud, cloud edition or ASP type service provided to Client to access certain functionality of proprietary Fair Isaac Software for use by Client. SaaS Service excludes all Professional Services, Support Services, Client Confidential Information, Client Data, Fair Isaac Software, and all Third Party Software systems, databases, content, reports, consumer credit information, credit reporting agency materials and files, lists, files or any other materials otherwise provided by Client or a Third Party, except as specifically provided herein.
“Services” means services provided to Client under the Agreement, including Professional Services, and Support Services. Services excludes all SaaS Services.
“Service Level Agreement” or “SLA” means the service level agreement, if any, defined in the applicable Order Form for a SaaS Service. Notwithstanding anything else provided, SLAs only apply if so stated in the applicable Order Form. SLAs do not apply to or include any Third Party Software, Professional Services or Deliverables.
“Software” means all programs, applications, code, specifications, graphical user interface (GUI), including all updates, modifications, releases and enhancements.
“Statement of Work” or “SOW” means an attachment or exhibit providing for any Professional Services that references and incorporates this Customer Agreement or an Order Form and describes the Professional Services to be performed, any Deliverables to be provided, and the fees to be paid by Client.
“Support Services” means the support and maintenance provided for the SaaS Service under the terms of Section 1.3 above and the specific SLA, if any, for a SaaS Service.
“Taxes” mean all present and future taxes, duties, import deposits, assessments, and other governmental charges (and any related penalties and interest not attributable to the fault or delay of Fair Isaac), however designated, that are now or hereafter imposed by or under any governmental authority or agency that are: (i) associated with the performance by Fair Isaac of its obligations under the Agreement; (ii) associated with the payment of any amount by Client to Fair Isaac pursuant to the Agreement; (iii) based on the license or use of any Fair Isaac-provided product or service; or (iv) associated with the importation of any Fair Isaac-provided product into or use of any Fair Isaac-provided service within a country other than the that in which Fair Isaac is incorporated, excepting only (a) Fair Isaac’s corporate franchise taxes and taxes imposed on Fair Isaac’s net income by the governmental authorities or agencies in any jurisdictions in which Fair Isaac is required to pay those taxes; (b) withholding, employment, and payroll taxes relating to Fair Isaac’s employees; and (c) personal property taxes on Fair Isaac property.
“Territory” means the United States of America or such other country(ies) specified in an applicable Order Form for the particular SaaS Service.
“Third Party” means any person or entity that is not directly a named party to this Customer Agreement.
“Third Party Software” means the Software products and/or Services of Third Parties, if any, licensed to Client or Fair Isaac, in connection with Client’s use of, or otherwise incorporated into, the Fair Isaac Product.
“Training” or “eLearning” means Client’s online access to the current generally available version of the training course provided as part of a SaaS Service, for a particular Fair Isaac Product, as specified in the particular Order Form. Unless otherwise provided the, eLearning is provided only to Authorized Users on a per Seat basis, access to the eLearning course shall expire six (6) months from the date the eLearning course is ordered, and failure to use or complete the eLearning course will not extend the term of the eLearning course.
“Trial” means an initial one-time non-production use of a Fair Isaac Product by Client, solely for Client’s internal business purposes to perform a trial and evaluation of such Fair Isaac Product to determine whether to make a purchase regarding such Fair Isaac Product. Unless otherwise provided the Order Form, the term of the Trial will be a period of sixty (60) days commencing on the date of Client’s order for the Trial, and Client’s access to the Fair Isaac Product Trial will expire at the end of such period.