PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY. This is a contract. It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Product or receiving the Consulting Services, you are agreeing to these terms. We periodically update these terms. If you have an active Futuremodel subscription, we will let you know when we do via an email or in-app notification. You can find archived versions of the terms here.
This Master Subscription License Agreement (the “Agreement”) is made between Davis Associates & Product LLC (“Futuremodel”), a California LLC and each party (a “Customer”) that executes an Order Form for the Product and Services (each as defined below). Between Futuremodel and each Customer, the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. This Agreement is effective as of the date of Customer’s initial Order Form (the “Effective Date”). By executing the initial Order Form, Customer agrees to all of the terms set forth below.
Customer acknowledges and agrees that the Product is subject to all applicable export control and economic sanctions laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control and economic sanctions laws and regulations related to the Product, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, the economic sanctions codified in 31 C.F.R. Part 500 et seq., and all licenses and authorizations issued under such laws and regulations. Customer shall fully cooperate with Futuremodel in securing any export licenses and authorizations required under applicable export control and economic sanctions laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such Product, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control and economic sanctions laws and regulations. Customer shall make its records available to Futuremodel upon reasonable request to permit Futuremodel to confirm Customer’s compliance with its obligations as set forth in this Section 11.
This Section 12 applies if Customer is, or is a contractor to, a US government agency. The Product, and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to Futuremodel and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government's right to use, reproduce or disclose the Product and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Product and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the government rights greater than, or additional to those, set forth in this Agreement.
Professional Services purchased by Customer will be as described on an applicable Order Form or Statement of Work (“SOW”) (the Order Form and SOW hereinafter collectively referred to as an “Ordering Document”). The Professional Services shall be governed by the terms and conditions of the Agreement, including this Exhibit A, and the applicable Ordering Document.
Location of Performance. All Professional Services will be provided remotely by Futuremodel, unless stated otherwise in an applicable Ordering Document. Customer understands that additional expenses may apply if Futuremodel agrees to perform work onsite.
Personnel. Customer Project Manager. Customer agrees to designate a responsible employee with reasonable decision-making authority to be the project manager (the “Project Manager”) for each engagement of Professional Services (each a “Project”). Thereafter, Futuremodel shall consult with Customer’s Project Manager and such other personnel as designated by Customer’s Project Manager, in order to facilitate the fulfillment of Project obligations.
Futuremodel Personnel. Futuremodel will provide a single point of contact to assist Customer’s Project Manager with coordination of Futuremodel resources, status reporting and issue resolution. In addition, Futuremodel will provide all resources, tools and equipment and utilize such qualified employees and/or non-employee contractors of Futuremodel (“Personnel”) as it deems necessary to perform the Professional Services. Futuremodel agrees to be responsible and liable for the performance of Professional Services by any Personnel it appoints and reserves the right to replace personnel in its normal course of business.
Scope of Work. There are no formal deliverables or acceptance criteria defined. Work is deemed accepted as it is performed.
Futuremodel Project roles:
Consultant The Consultant delivers on the Project scope with a focus on enabling customers to achieve continued success in their use of the Product.
Engagement Manager The Engagement Manager is responsible for coordinating activities on Futuremodel’s behalf, resolving dependencies and issues that may arise, and enabling Customer’s Project Manager to drive business outcomes with Futuremodel.
Customer Project roles:
Data Analyst Customer Data Analysts will partner with Futuremodel Consultants to deliver upon the outlined scope of the Project. It is required that Customer Data Analysts have the appropriate technical skill set and have undergone Futuremodel technical training to deliver upon any Futuremodel implementation work.
Project Manager The Customer Project Manager has overall responsibility for the completion of the Project. He/she is responsible for coordinating Customer resources and ensuring that any required resources are available to ensure smooth Project delivery.
Business User Business User engagement is critical to any futuremodel Professional Services engagement. Executive sponsors and business users must be available for requirements gathering exercises, feedback and training sessions.
Unless stated otherwise in an Ordering Document, all Professional Services will be invoiced upon execution of the applicable Ordering Document. All fees are due in accordance with the terms set forth in Section 6.1 of the Agreement.
Term. The term of a Project will be as designated in the service package description in an Ordering Document.
Change Order. In the event that Customer requires changes to the scope or timing of a Project, Customer agrees to discuss such changes with Futuremodel. If Futuremodel agrees to modify the scope of a Project, the parties agree to work in good faith to memorialize the changes in a “Change Order” or an amended Ordering Document, including but not limited to, an adjustment of fees applicable to the change in scope or timing of the Project. Customer further understands and agrees that Futuremodel shall not be obligated to perform any different or additional Professional Services requested by Customer unless the parties have mutually agreed in writing upon the performance of such request.
Termination. Upon termination by either party in accordance with Section 5.3 of the Agreement, Futuremodel will immediately cease performing the Professional Services and Customer agrees to pay Futuremodel for the Professional Services provided to Customer prior to termination, if such fees have not already been paid.
In order to ensure the timely engagement, performance, completion and success of a Project, Customer understands and agrees that the following requirements are critical.
Customer must ensure that data structures are finalized, and data is readily available by the Kick Off Meeting to be scheduled by Customer (the “Project Kick-off Meeting”).
Customer must supply remote access to their systems and credentials to Futuremodel Personnel within (3) three business days of the Project Kick-off Meeting. Customer will assign personnel with appropriate skills and experience as described in Section 3 above, that are available to work with Futuremodel through the completion of the Project. Customer will ensure that personnel assigned to work on the Project will undergo proper training. Customer will ensure that appropriate resources are engaged to resolve an issue if Futuremodel determines the issue is due to a problem in Customer’s environment. Customer will notify Futuremodel at least (24) twenty-four hours in advance if a meeting or session needs to be rescheduled. Customer understands that they will be responsible for maintaining their Futuremodel model.
Professional Services will be performed during Futuremodel’s business hours, based on the location of the Futuremodel Consultant. Futuremodel expects that Customer personnel are available during Futuremodel business hours. Futuremodel understands that occasions arise during customer engagements that require a longer or shorter working day. Futuremodel Personnel will make him or herself available only over email, phone, and/or video conference during the course of the Project, unless otherwise agreed to in an Ordering Document.
Customer’s Project Manager will notify the Futuremodel Project Manager of any apparent issue or concern that might cause a risk to the Project and the parties agree to work in good faith to resolve any issue in a timely and professional manner. It is assumed that all Project issues will be resolved quickly by Customer’s Project Manager, the Futuremodel Business Contact and Customer and Futuremodel personnel. If resolution of the issue is not reached, the parties agree to escalate such matter to their senior management for resolution.
It is the intent of the parties that the Professional Services are a configuration of the Product. All intellectual property rights that are owned or controlled by a party at the commencement of the Professional Services shall remain under the ownership and control of such party throughout the term of the Professional Services engagement and thereafter. In the event Futuremodel does create, conceive or develop any new ideas, concepts, methods, techniques, skills, knowledge, reports, recommendations or other deliverables (collectively, the “Base Work”) as a result of performing the Professional Services, Futuremodel shall own such Base Work, and hereby grants to Customer a royalty-free, non-exclusive, world-wide, fully paid, limited license to use and practice the Base Work for its Internal Business Purposes and, if applicable, its External Business Purposes, in conjunction with the authorized use of the Services, during Customer’s Subscription Term.
Performance. Futuremodel represents and warrants that the Professional Services shall be performed in a timely and professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing services of a similar nature under similar circumstances by personnel with requisite skills, qualifications and licenses needed to carry out such work. Customer’s sole and exclusive remedy, and Futuremodel’s sole and exclusive liability, for breach of this Section 9(a) shall be to re-perform the Professional Services, within a reasonable time. If Futuremodel is unable to re-perform the Professional Services, then Futuremodel may terminate the applicable Ordering Document. Any claim based on a breach of the foregoing warranty must be submitted to Futuremodel in writing within ten (10) days from performance of the applicable Professional Services.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FUTUREMODEL MAKES NO OTHER REPRESENTATION OR WARRANTY REGARDING PROFESSIONAL SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ALL SUCH REPRESENTATIONS OR WARRANTIES ARE HEREBY EXCLUDED.
Waiver of Consequential Damages. WITH RESPECT TO THE PROFESSIONAL SERVICES, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability. FUTUREMODEL’S AGGREGATE LIABILITY, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH ANY PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE PROFESSIONAL SERVICES FEES PAID BY CUSTOMER PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9(d) IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF FUTUREMODEL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. FUTUREMODEL HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE PROFESSIONAL SERVICES.
In the event of any conflict or inconsistency, related to Futuremodel’s provision of Professional Services, between the terms and conditions of the Agreement, this Exhibit A, or an applicable Ordering Document, the order of precedence shall be as follows: (i) Ordering Document, (ii) Exhibit A, and then (iii) the Agreement.
If Customer purchases Jumpstart Services, the following additional terms shall apply:
Overview The objective of the Jumpstart Service is to help Customer rapidly learn to develop Models and use the Product. Futuremodel will assign a consultant to assess Customer’s needs, then consult, train, and in some cases co-develop Models with Customer’s Data Analysts. Futuremodel will provide subject matter expertise, working under the direction of Customer Project Managers and technical staff, as part of Customer’s Project team(s). Futuremodel Consultants will assist and mentor Customer’s Project team(s) to ensure the best application of the Product. This will include providing guidance to Customer around the design, development, testing and deployment of Customer’s applications using the Product.
A Jumpstart Service includes the following elements:
Jumpstart Services are intended to be completed within sixty (60) days of the Project Kick-Off Meeting. If Jumpstart Services are not completed within ninety (90) days following the Project Kick-Off Meeting, Customer must: End the engagement and transition to Support by Futuremodel’s customer success team; or Execute an additional PSA to extend the timeframe of the Jumpstart Service. Additional fees may apply depending on the remaining work required to complete the Jumpstart Services.
Project Scheduling To facilitate the scheduling of Futuremodel Personnel designated to work on the Jumpstart Services, Futuremodel requests at least three (3) business days advanced notice prior to the Project Kick-Off Meeting.