Finout is an enterprise-grade FinOps solution that helps companies easily allocate, manage and reduce their cloud spending across their entire infrastructure.
Terms of Use
FINOUT TERMS OF USE
Last revised: September 2nd, 2024
For Customers located in the United States or Canada – Finout inc., otherwise – Finout Ltd. (“Finout”, “our”, “we” or “us”) offers to its customers (“Customers” or “you”) an online Software-as-a-Service Cost Observability platform (the “Solution”). In addition, our website located at https://www.finout.io/ offers visitors (respectively “Website” and “Visitors”) information about our company, technology and information concerning our Solution, as well as demos and trials of our Solution (if and to the extent Finout makes them available). The Website, together with the Solution and related services, except if specifically otherwise designated, shall be referred to herein as the “Services”. The terms “Users” refer to: (I) Customer; (II) Customer’s first user of the Solution (“Customer’s Admin”), and (III) End users invited by the Customer and/or by the Customer Admin (namely employees and any other Customer personnel) who access and/or to use or access the Services under Customer’s account (the “End User(s)”). Each of the Users may access and use the Services in accordance with the terms and conditions hereunder.
By entering to, connecting to, accessing or using the Services, you acknowledge that you have read and understood these Terms of Use (the “Terms of Use”), including our Privacy Policy located at https://finout.io/privacy-policy (the “Privacy Policy”, collectively with these Terms of Use, the "Terms") and you agree to be bound by the Terms and to comply with all laws and regulations that apply to your use of the Services and you agree that these Terms constitute a binding and enforceable legal contract between Finout and you.
ATTENTION - PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SOLUTION AND SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ENTER, CONNECT TO, ACCESS OR USE THE SERVICES AND/OR SOLUTION IN ANY MANNER.
IF YOU ARE THE FIRST PERSON TO USE OR ACCESS THE SERVICES ON BEHALF OF YOUR ORGANIZATION, YOU AGREE THAT YOUR ORGANIZATION IS DEEMED A CUSTOMER AND YOU SHALL BE DEEMED A CUSTOMER ADMIN FOR THE PURPOSE OF THESE TERMS, UNLESS YOU ACTIVELY NOTIFY US OF THIS THROUGH THE SOLUTION THAT YOU HAVE DESIGNATED ANOTHER END USER OF THE CUSTOMER TO ACT IN SUCH CAPACITY. CUSTOMER ADMIN HEREBY REPRESENTS, AGREES AND ACKNOWLEDGES THAT (I) HE/SHE HAS BEEN DESIGNATED BY THE CUSTOMER AND HAS FULL LEGAL AUTHORITY TO USE AND REGISTER TO THE SERVICES, INCLUDING ON BEHALF OF THE CUSTOMER AND TO BIND CUSTOMER TO THESE TERMS; AND (II) THESE TERMS ALSO CONSTITUTE A BINDING CONTRACT BETWEEN CUSTOMER AND FINOUT.
CUSTOMER ADMIN, END USER, AND CUSTOMER HEREBY REPRESENT AND WARRANT THAT CUSTOMER ADMIN AND END USER’S USE OF AND ACCESS TO THE SERVICES ASSOCIATED WITH CUSTOMER, ARE PERFORMED UNDER CUSTOMER’S AUTHORIZATION AND SHALL INURE TO THE BENEFIT OR LIABILITY OF THE CUSTOMER.
Any separate written agreement entered into between Finout and Customer with respect to use and access to the Solution shall take precedence over conflicting provisions in these Terms.
1. The Services
1.1. Finout Solution. The Finout Solution is an online Software-as-a-Service Cost Observability platform. In order to use the Finout Solution, Customer will need to provide Finout with certain Customer’s internal financial operations data, documents and information and/or provide Finout with the relevant access credentials and thereby allow Finout to collect process and analyze such internal financial operations data, documents and information. The customer (including via the Customer Admin) acknowledged and agreed that it (and not Finout) has sole control over which information or access credentials are provided to Finout.
1.2. Scope and Applicability. These Terms of Use apply only to your access and usage of the Services.
1.3. Modification of the Services. Finout may continuously update its Services with new capabilities or offerings or replace and/or discontinue some of the capabilities. You acknowledge and agree that some of the features and capabilities may be experimental and/or offered in limited versions or limited locations. In addition, Finout may, at any time, at its sole discretion, add or remove supported features and/or capabilities from the Solution. The customer’s sole remedy in the event of such changes shall be, where such changes reflect a material decrease in functionality, to terminate any affected subscription to the Solution. In such event, Customer is required to provide Finout with written notice of such termination not later than within fourteen (14) days of being notified of such adverse change, and Finout shall provide the Customer with a refund for the pre-paid un-used subscription fees.
2. Registration and User Account
2.1. Account Registration. In order to use the Services, the Customer must register and open an account through the Website or as otherwise directed by Finout (the “Finout Customer Account”). To complete your Finout Customer Account registration, we will require certain information, including your name, organization name, e-mail and password, as well as your consent for Finout to receive and process your Customer Data. We may allow Customer Admin and/or other End Users to invite other End Users to join the Finout Customer Account as End Users associated with the Finout Customer Account. A person receiving such an invite from Finout may choose to join the Finout Customer Account, or if such person is not yet a registered End User, s/he will be required to first register to the Finout Solution and open an End User account (“Finout End User Account”). The term “Finout Account” will refer to the Finout Customer Account and/or the Finout End User Account, as the case may be.
2.2. Customer’s Admin Permissions. A Customer Admin holds and may, to the extent enabled by Finout, delegate different roles and permissions, if and as enabled by Finout through the Services, to End Users, such as without limitation, to designate other End Users as Customer Admin, allowing certain view and access certain information and analysis using the Services, etc. all according to the permissions matrix as made available by Finout from time to time (the “Finout Permission Matrix”). Customer and Customer Admin are solely responsible for any determinations made to designate or not to designate any End User as having or not having any given Finout-enabled roles or permissions.
2.3. Account Security. You are responsible for maintaining the confidentiality of your Finout account login credentials (e-mail and password or any other access method implemented by Finout) and all activities under your Finout Account. You agree not to disclose your login credentials to any third party, and you are responsible for any use or misuse performed through your Finout Account (including by any third party if you do choose to disclose these credentials). We reserve the right to temporarily suspend or permanently terminate your Finout Account if we determine that you or anyone on your behalf is using your Finout Account in a manner that violates these Terms.
2.4. Finout Demo. We may make available on the Website certain demonstrations of the Services (“Demos”) and/or allow you to register for a free or paid trial of the Services and Solution (“Trial”). These Terms govern any Demos and Trials and any use thereof. You acknowledge that we may, in our sole discretion and at any time(s), add, remove, discontinue, edit or otherwise change any part of the Demos or Trials (either prospective or ongoing) and the Services made available under such Demos or Trials, without notice, and delete any Customer Data provided in the scope of such Demos and Trials.
2.5. User Updates. If you wish to modify your Finout Account information or terminate your Finout Account, you may do so by contacting Finout support, which is available at support@finout.io. Your Finout Account will be terminated within a reasonable time following your request in accordance with the Privacy Policy, and from that date, you will no longer be able to access your Finout Account, and the permissions, rights and licenses granted to you under these Terms shall terminate.
NOTE THAT TERMINATING YOUR ACCOUNT MAY CAUSE THE LOSS AND/OR UNAVAILABILITY OF CONTENT, FEATURES, OR CAPACITY CONCERNING YOUR FINOUT ACCOUNT. FINOUT SHALL NOT BE LIABLE IN ANY WAY FOR SUCH UNAVAILABILITY AND/OR LOSS.
3. Order Form
3.1. Order Form. We may require you to execute a Purchase Order to allow you access or to subscribe to the Services (the “Order Form”). An Order Form may specify and include, among others, the fees payable in consideration for your access to the Services (“Fees”), the scope of the Services, subscription plan and term (“Subscription Term”), termination rights, additional payment and billing terms. An Order Form may be executed in various ways (as Finout may make it available from time to time at its discretion), including by clicking-accepting an Order Form displayed through the Website or otherwise in an online form or by mutual acceptance in writing.
3.2. Payment of Fees. We may allow several means of payment, such as bank transfer, payment through an online payment gateway, and other means we may make available occasionally. If we make online payment available through our Services, such payment option is executed via third-party payment clearance service providers or payment gateway providers (the “Payment Services”) that may be integrated and embedded in the Services. If you choose to proceed with an online payment, then you: (i) agree to review and be bound by the relevant Payment Services’ terms of use and privacy policy; (ii) acknowledge that you may need to hold, or register, an active account at such Payment Services in order to complete a purchase and (iii) acknowledge that confirmation or rejection of your payment is not performed by Finout. We are not responsible or liable for any activities or conduct of any Payment Services, and you agree to hold us harmless and expressly release us from any and all liability arising from or in connection with any payment activity performed on our Services.
3.3. Unless otherwise agreed between the Parties in an Order Form, all Order Forms are final and may not be cancelled or terminated for convenience by User or Customer. Finout may cancel or terminate an Order Form at any time, for convenience, by providing a written notice (including by email), provided that in such event, Finout shall refund to User/Customer any pre-paid unused Fees.
3.4. Unless otherwise outlined in an Order Form, any Fees you owe to Finout shall be paid to Finout before the provision of the relevant Services.
4. Intellectual Property Rights; License
4.1. Finout Intellectual Property. Any proprietary and intellectual property rights in and to the Solution and the Website including any content thereof, such as logos, graphics, icons, images, as well as the selection, assembly and arrangement thereof (the “Content”) and related materials, Finout’s trademarks, trade names, copyrightable materials, designs, “look and feel,” all whether or not registered and/or capable of being registered, and any and all Feedback as defined herein (Collectively, the “Finout Properties”), are owned and/or licensed to Finout or its affiliates or licensors and are subject to copyright and other applicable intellectual property rights under Federal and state United States law, Israel law, foreign laws and international conventions.
4.2. Your Use Rights. Subject to your compliance with these Terms, and unless otherwise agreed in writing between you and Finout, Finout grants you a limited, worldwide, non-exclusive, non-assignable, not-tradeable, non-sub-licensable, fully and immediately revocable at our discretion, license, to access and use the Website and where you have purchased a subscription to use and access the Solution (a “Subscription”) or otherwise if you have registered for a Trial or Demo (as such terms defined below), to use the Solution in the scope of such Subscription, Trial or Demo, all solely for Customer’s internal business purposes, in accordance with these Terms. Except as stated above, no other rights in the Solution or the Services are granted. As between Customer and Finout, Customer retains all rights, title and interest in and to Customer Data and has all required consents, licenses and assurances for the transfer of the Customer Data to Finout for the purposes of providing the Services and/or as permitted or referenced under these Terms.
4.3. Use Restrictions. You may not and you shall not permit any person, and/or any third party to (i) copy, modify, distribute, publicly display, transfer or create derivative works of, adapt, emulate, translate, reverse engineer, compile, decompile, disassemble or reproduce the Website and/or the Solution, or any parts thereof, for any purpose, (ii) remove or delete any and all copyright notices, restrictions and signs indicating proprietary rights of Finout and/or its licensors, including copyright mark [©] or trademark [® or ™] contained in or accompanying the Website and/or the Services, (iii) create a browser or border environment around the Website, and/or Solution, link, including in-line linking, to elements on the Website or Solution, such as images, posters and videos, and/or frame or mirror any part thereof or use the Services as a services bureau or otherwise to provide services which are in essence similar to the Services to third parties; (iv) transmit, distribute, display or otherwise make available through or in connection with the Services any content, including any Customer Data (as defined below), in a manner which infringes third party rights, including intellectual property rights and privacy rights, or which may contain any unlawful content; (v) transmit or otherwise make available in connection with use of the Services any malware or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (vi) interfere with or disrupt the operation of the Services, or the servers or networks that host them or make the Services available; (vii) use the Services for and/or in connection with any illegal conduct and/or any form of spam, unsolicited mail or similar conduct; (viii) access and/or use any Services and/or the Content in order to build a competitive product or service; (ix) publish or disclose to any third party any technical features, quality, performance or benchmark test, or comparative analyses relating to the Services; (x) bypass any measures which are used to prevent, control or restrict access to the Services and/or certain functionalities therein; (xi) infringe or violate any of the terms and conditions of this Agreement. You hereby agree that upon Finout’s request, you will immediately return and purge from your systems all materials and copies of the same, collected, created or used in breach of these Terms.
4.4. Feedback. In the event that Users provide Finout with any suggestions, comments or other feedback relating to Finout’s Services (collectively, “Feedback”), such Feedback is provided ‘As Is’ and is and will be deemed as the sole and exclusive property of Finout and you hereby irrevocably assign to Finout all of your rights, title and interest in and to all Feedback, if any, and waive any moral rights you may have in such Feedback. Without derogating from the foregoing, you hereby represent and warrant that you shall not provide any Feedback that is subject to any third-party rights or any limitations or which you are otherwise precluded from providing to Finout and shall promptly inform Finout as soon as you become aware of any third-party right or limitation which may apply to Feedback already provided by you.
4.5. Third Party Components. The Services may use or include third-party software, files and components subject to open source and third-party license terms (“Third-Party Components”). Your right to use such Third Party Components as part of, or in connection with, the Services is subject to any applicable acknowledgements and license terms accompanying such Third Party Components contained therein or related to it. If there is a conflict between the licensing terms of such Third-Party Components and these Terms, the licensing terms of the Third-Party Components shall prevail only in connection with the related Third-Party Components. Without derogating from Finout’s warranties under section 8, Finout disclaims all liability related to any third-party components utilized in the Services. You acknowledge that Finout is not the author, owner or licensor of any Third-Party Components and that Finout makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third-Party Components. Under no circumstances shall the Services or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software.
5. Cost Optimizer Services
5.1. In addition to the Finout Solution and as an optional service under the Finout-related services which are subject to these Terms, Finout may offer its Customers automatic commitment management services, which comprise of the purchase, sale, exchange, or otherwise obtaining or disposal of cloud capacity reserves (“Commitments”), whether directly from a cloud services provider or vis-à-vis third parties across the respective cloud marketplaces (“Cost Optimizer Services”), all in accordance with the terms and conditions contained herein and the Order Form.
5.2. To the extent Customer chooses to use the Cost Optimizer Services, Customer hereby explicitly authorizes and appoints Finout to provide Customer the Cost Optimizer Services for the Subscription Term (as set in the applicable Order Form), and act on behalf of Customer, using Customer’s applicable cloud account and such account credentials, to provide Customer with the Cost Optimizer Services, subject to and as detailed under these Terms and your Order Form, and subject to the maximum monetary budget provided by Customer on Finout’s platform or as otherwise agreed in writing by the Parties.
5.3. Upon termination of the provision of the Cost Optimizer Services, Finout shall be entitled, but not obligated to sell all outstanding Commitments purchased during the provision of the Cost Optimizer Services.
5.4. Customer represents and warrants to Finout that it has or has obtained full power and authority to enter into and grant the permissions and authorizations detailed herein or otherwise necessary for the performance of the Services (including without limitation the Cost Optimizer Services) and that any of such will not constitute a breach of, or otherwise conflict with, any obligations, laws, rules, regulations, any agreement or other instrument or commitment to which it is subject or by which it is bound.
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5.5. WITHOUT DEROGATING FROM ANYTHING STATED HEREIN, THE COST OPTIMIZER SERVICES ARE INTENDED TO ASSIST CUSTOMERS IN OPTIMIZING THEIR CLOUD COSTS, INCLUDING THROUGH MARKETPLACE TRANSACTIONS. HOWEVER, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FEASIBILITY, PRICING, SALE, ECONOMICS, AND COST-OPTIMIZATION OF ANY COMMITMENTS TRADING OR OTHER RELATED CLOUD COSTS ARE DEPENDENT ON A MULTITUDE OF MARKET-RELATED AND OTHER FACTORS AND IS NOT GUARANTEED. THE FINOUT COST OPTIMIZER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FINOUT DOES NOT WARRANT NOT GUARANTEE THAT ANY PURCHASED COMMITMENTS WILL BE SOLD OR OTHERWISE DISPOSED OR THAT ANY ACTUAL OPTIMIZATION OR ANY OTHER RESULT WILL BE ACHIEVED VIA THE COST-OPTIMIZATION SERVICES.
6. Confidentiality
6.1. Either party (a “Disclosing Party”) may disclose or make available to the other party (a “Receiving Party”) certain confidential information regarding its technology, operations and business (“Confidential Information”). The receiving Party agrees to use the best reasonable industry measures to protect the confidentiality and not disclose the Confidential Information to any third party or use any Confidential Information except as required to provide or use the Services or the Solution in the scope of the parties’ engagement hereunder. Confidential Information shall not include information that the Receiving Party can show by written evidence (a) was already lawfully known to or independently developed by the Receiving Party without access to or use of Confidential Information, (b) was received by the Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions. The receiving Party shall not be prevented from disclosing Confidential Information pursuant to a binding court order or similar binding legal requirement for disclosure, provided that the Receiving Party provides the Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. The receiving Party shall, in any event, remain liable for any actions or omissions performed by its employees and service providers as if they were performed by the Receiving Party. Upon termination or expiration of this agreement for any reason or upon User’s written request, Finout shall return or permanently destroy all Customer Data related to User in its possession.
7. Our Privacy Policy; Customer Data
7.1. Finout Privacy Policy. We respect the privacy of our Users and are committed to protecting the personal information you share with us or that we collect in connection with your use of the Services. In the scope of the provision of the Services, certain personal data may be collected, processed, stored, and analyzed. Such personal data may be obtained directly from End Users or Customer Admins (as data subjects) or from the Customer Admin, or as part of the Customer Data provided by the Customer, all in accordance with the https://finout.io/privacy-policy. By accessing or using the Services, you agree to the Privacy Policy.
7.2. Compliance with Data Protection Laws. Finout and Customer shall comply with all privacy and data protection laws, including, without limitation, the European Union's General Data Protection Regulation (2016/679) (“GDPR”), and any other applicable laws and regulations relating to the processing of “Personally Identifiable Information” (“PII”) (as such terms are defined in the GDPR) and privacy protection as amended from time to time that apply to them in connection with the Customer Data (“Data Protection Laws”). The Parties acknowledge that to the extent that the Customer Data includes PII (“Customer Data PII”), Finout shall be deemed a ‘Data Processor’ of Customer with respect to the processing by Finout of such Customer Data PII, and Customer shall be deemed a “Data Controller” (as such terms are defined by the GDPR) and where applicable, the Parties shall comply with the terms of the Data Processing Agreement entered between the Parties in such respect. Customer represents and warrants that it is legally authorized and, where applicable, has obtained all approvals and consents (including by providing the required notices to data subjects) as required for Customer to allow Finout to process the Customer Data PII in accordance herewith. Customer hereby agrees that Finout may retain the Customer Data PII for as long as Customer’s account is active or as otherwise needed to provide Customer with the Services contemplated hereunder and as permitted by applicable law. Finout may retain Customer Data PII even after Customer deactivates its account or ceases to use the Services, but only as reasonably necessary to comply with any of Finout’s legal obligations, prevent fraud and abuse, enforce Finout’s agreements and/or protect its legitimate interests.
7.3. Authorization to share Customer Data. You hereby represent and warrant that you have the full right, permissions, and consent to use and share any data and information you make available to Us through the Services (together “Customer Data”) under these Terms.
7.4. Security of Customer Data PII. Without limiting the foregoing, and in addition to its confidentiality obligations as otherwise set forth herein, Finout will, with respect to Customer Data PII, use commercially reasonable efforts to (i) ensure the security and confidentiality of such information or materials, (ii) protect against any anticipated threats or hazards to the security or integrity of such records, (iii) detect unauthorized access to or use of such records or information, and (iv) protect against unauthorized access to or use of such records or information that would result in harm to Customer.
7.5. Use of Customer Data. You hereby grant Finout a non-exclusive, non-assignable, non-transferable license to use Customer Data you made available to us in the scope of your use or access to the Services (including for the collection storage, processing, analysis, display, transfer and creation of derivatives, thereof) for the purpose of providing the Services to you and to the Customer with which your account is associated, as contemplated hereunder. Finout will store and maintain Customer Data for such period of time necessary for it to provide the Services to you or to Customer (as the case may be).
7.6. Anonymous Cumulative Information. Without derogating from the foregoing, you hereby grant Finout a perpetual, irrevocable, non-exclusive, worldwide, royalty-free right and license to use Customer Data that has been anonymized and that cannot be used to identify or otherwise understood to be related to you or to Customer or third party, for the purpose of internal research or otherwise improving or enhancing the Services (or any part thereof).
7.7. Deletion of Customer Data. Upon termination of the Services, whether by Customer’s request or at Finout’s discretion and in accordance with these Terms, Finout will, within thirty (30) days, delete any and all information provided by the Customer in accordance with Section 1.1 of these Terms and any analysis results provided by Finout to Customer as part of the Services.
8. Availability
8.1. The Services' availability and functionality depend on various factors, such as communication networks, software, hardware, and Finout’s service providers and contractors. Finout will make all reasonable efforts to have the Services available in accordance with the Service Availability Terms attached hereto Exhibit A. Notwithstanding the foregoing, Finout does not warrant or guarantee that the Services will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access or will otherwise be error-free.
9. User Eligibility
9.1. You must be at least eighteen (18) years of age to use the Services. By using the Services and agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; or (ii) that you are the legal guardian of the User under the age of eighteen (18) and both you and the User have read and agreed to these Terms and approved of the User’s continued use of the Services subject to these Terms; (iii) that you have not previously been suspended or removed from the Services; and (iii) that your use of the Services is in compliance with any and all applicable laws and regulations.
10. Disclaimer of Warranties
10.1. FINOUT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICES (OR ANY PART THEREOF). THE SERVICES INCLUDING WITHOUT LIMITATION ANY CONTENT, MATERIALS, DATA AND INFORMATION MADE AVAILABLE THEREHTROUGH OR RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. FINOUT AND ITS AFFILIATES AND/OR ITS SUBSIDIARIES, INCLUDING ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES AND OTHER AFFILIATES (COLLECTIVELY, “FINOUT AFFILIATES”), JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE USABILITY, ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, LEGALITY, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY CONTENT, DATA, RESULTS, OR OTHER INFORMATION AVAILABLE, OBTAINED OR GENERATED IN CONNECTION WITH YOUR OR ANY USER’S USE OF THE SERVICES.
10.2. FINOUT DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES, SOLUTION AND/OR WEBSITE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SERVICES AND/OR WEBSITE, INCLUDING USE OF AND/OR RELIANCE ON ANY CONTENT AVAILABLE THROUGH THE WEBSITE, IS ENTIRELY, OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK.
11. Indemnification
11.1. YOU RELEASE AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS FINOUT, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEY’S FEES RELATED IN ANY WAY TO: (I) YOUR BREACH OF ANY TERM OR CONDITION OF THESE TERMS, (II) YOUR USE OF, RELIANCE ON OR ACCESS TO THE SERVICES; (III) ANY RIGHTS OF A THIRD PARTY WITH REGARD TO YOUR CUSTOMER DATA, INCLUDING PRIVACY OR INTELLECTUAL PROPERTY RIGHTS. WE WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION, AND WE WILL ALLOW YOU TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU HEREUNDER AS LONG AS YOU CONDUCT SUCH DEFENSE DILIGENTLY.
12. Limitation of Liability
12.1. EXCEPT WITH RESPECT TO DAMAGES ARISING FROM FINOUT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL FINOUT AND/OR ANY OF THE FINOUT AFFILIATES BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM OR ARISING OUT OF THE SERVICES, USE OR INABILITY TO USE THE SERVICES, FAILURE OF THE SERVICES TO PERFORM AS EXPECTED, LOSS OF GOODWILL, LOSS OF DATA OR PROFITS, THE PERFORMANCE OR FAILURE OF FINOUT TO PERFORM UNDER THESE TERMS, AND ANY OTHER ACT OR OMISSION OF FINOUT BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE CONDUCT OF ANY USERS AND/OR THIRD PARTY WEBSITES.
12.2. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, FINOUT IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES OR ANY CONTENT, FINOUT’S LIABILITY SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO FINOUT UNDER APPLICABLE ORDER FORM DURING THE TWELVE 12 MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. IN ANY CASE NO ACTION MAY BE BROUGHT BY YOU IN CONNECTION WITH THE SERVICES MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
12.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 12 SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN AN ACTION OF CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR FINOUT’S PROVISION OF THE SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND EVEN IF FINOUT AND/OR ANY FINOUT AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES AND/OR DAMAGES.
13. Amendments to these Terms
13.1. Finout may change these Terms occasionally, at its sole discretion and without any notice. We will notify you regarding substantial changes to these Terms on the Services homepage and/or we will send you notifications regarding such changes to the e-mail address available in your Finout Account information. Such substantial changes will take effect seven (7) days after such notice is provided on our Website or sent via email. Otherwise, all other changes to these Terms are effective as of the stated “Last Revised” date, and your continued use of the Services after the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes.
14. General
14.1. Relationship of the Parties. These Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
14.2. Governing Law and Jurisdiction. Any claim relating to the use of the Services will be governed by and interpreted in accordance (i) when the contracting entity (as stated above) is Finout Inc., the laws of the state of New York, without regard to conflict of law provisions, and the Courts located in New York, NY, shall have exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms and/or the Services; or (ii) when is the contracting entity (as stated above) is Finout Ltd, Ltd., the laws of Israel without regard to the conflicts of law’s provisions, and the Courts located in Tel-Aviv-Jaffa, Israel, shall have exclusive jurisdiction to settle any dispute arising out of or in connection with these Terms and/or the Services. Any dispute arising from or related to your use of the Services will be brought in, and you hereby consent to the exclusive jurisdiction and venue in the competent courts as set above.
14.3. Assignment. You may not assign, sublicense, or otherwise transfer any or all of your rights or obligations under these Terms without Finout's prior express written consent. We may assign our rights and/or obligations hereunder and/or transfer ownership rights in the Solution and Services (or any part thereof) to a third party without your consent or providing any prior notice.
14.4. Severability. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision.
14.5. No Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
14.6. Without limitation, you agree that a printed version of these Terms and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
15. Contact Us
If you wish to receive more information on these Terms, please contact us at support@finout.io
Exhibit A
Service Availability Terms
1. Definitions
1.1. Except for terms defined herein, capitalized terms used and not defined herein shall have the meaning as set forth in the Terms.
1.2. “Downtime Event” means the time in which a Finout Solution is unavailable to the Customer as measured and determined by Finout based on its servers. Downtime Events exclude: (i) planned downtime events announced or notified to Customer in-advance by Finout, including without limitation, for periodic upgrade and maintenance; and/or (2) any time where Finout is awaiting information from the Customer or awaiting Customer confirmation that the Solution has been restored.
1.3. “Downtime Period” means the number of minutes in a calendar month during which the Solution is unavailable to the Customer due to Downtime Event(s).
1.4. “Availability” means the total number of minutes in a calendar month minus the Downtime Period, divided by the total number of minutes in a calendar month and multiplied by 100.
2. Subject to Customer’s compliance with the Terms, including timely payment of all applicable Fees due and payable to Finout for the duration of the Subscription Term, Finout will provide Customer with access to the Solution on a twenty-four hour, seven days a week (24x7) basis at a rate of 98% Availability (“Solution Availability”). The Solution Availability shall commence on the Effective Date (as defined in the Terms).
3. THE CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY IN CASE OF BREACH BY FINOUT OF ITS SOLUTION AVAILABILITY OBLIGATIONS UNDER THESE TERMS SHALL BE FINOUT’S USE OF REASONABLE EFFORT TO RESOLVE THE CRITICAL BUGS CAUSING SUCH BREACH.
4. A “DOWNTIME EVENT” WILL EXCLUDE, AND THE AVAILABILIY OBLIGATION HEREUNDER SHALL NOT APPLY TO ANY EVENT THAT: (I) IS CAUSED BY FACTORS BEYOND FINOUT’S REASONABLE CONTROL SUCH AS: BROAD CLOUD SERVICE (AWS) OUTAGE OR WAF (CLOUD FLARE) OUTAGE; (II) RESULTED FROM CUSTOMER’S SOFTWARE OR HARDWARE, AS WELL AS ANY EVENTS CAUSED BY THE CUSTOMER'S OWN MANAGEMENT OR MISUSE OF THE SOLUTION /FINOUT’S SERVICES; (III) RESULTED FROM ABUSES OR OTHER BEHAVIORS ON BEHALF OF THE CUSTOMER OR UNRELATED THIRD PARTIES THAT VIOLATE THE TERMS; (IV) RESULTED FROM DOWNTIME OF THE CLOUD SERVICE PROVIDER; OR IS (V) OTHERWISE IS EXPLICITLY EXCLUDED UNDER THESE SERVICE AVAILABILITY TERMS.
