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Shrinkwrap License Agreement
FICO(tm) Xpress Optimization Suite
FICO(tm) Xpress Insight
This Shrinkwrap License Agreement ("Agreement") is a legal agreement between you (either individually or a
single entity) ("You" or "Client") and Fair Isaac Corporation or any of its affiliates, including but not limited to any
company that controls, is controlled by, or is under common control with Fair Isaac Corporation, or any successor
company, from whom the Fair Isaac Product is licensed or to whom this Agreement is assigned ("Fair Isaac"), for
the enclosed Xpress Optimization Suite software product(s) and included materials (collectively, the "Fair Isaac
Product").
This Agreement is effective upon the date a purchase order for the licensing of the Fair Isaac Product submitted by
Client and accepted by Fair Isaac ("Purchase Order"), entering into a signed agreement for the licensing of the Fair
Isaac Product ("Signed License Agreement"), or the first of installation or use of the Fair Isaac Product, whichever
date is earliest ("Effective Date"). Please Read The Terms Of This Agreement Carefully Before You Install Or Use
The Fair Isaac Product.
BY SUBMITTING A PURCHASE ORDER OR ENTERING INTO A SIGNED LICENSE AGREEMENT OR
INSTALLING, COPYING, OR OTHERWISE USING THE FAIR ISAAC PRODUCT OR BY CLICKING ON
THE "ACCEPT" BUTTON THAT PRESENTS UPON INSTALLATION OF THIS FAIR ISAAC PRODUCT,
YOU (BOTH PERSONALLY AND, IF CLIENT IS AN ENTITY, AS AN AUTHORIZED REPRESENTATIVE
OF CLIENT) SIGNIFY YOUR ACCEPTANCE OF EACH AND EVERY TERM CONTAINED IN THIS
AGREEMENT and you acknowledge that you have been presented with this Agreement in a written form
accompanying the delivery of the Fair Isaac Product and/or electronically upon initialization of the Fair Isaac
Product and have had the reasonable opportunity to reject these terms and conditions.
Upon submission of a Purchase Order or execution of Signed License Agreement or installation or use of the Fair
Isaac Product you (and Client, if applicable) will be bound by all of the terms, conditions, and restrictions contained
in this Agreement and will not be entitled to a refund of any fees paid.
Fair Isaac, Client, and any user of the Fair Isaac Product agree as follows:
1. DEFINITIONS. In this Agreement:
"CPU" means an individual physical central processing unit with one or more physical cores.
"Confidential Information" means financial and/or business 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, financial condition, 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), documentation, and functionality, security procedures and approaches, know-how, customer names and
information, experimental work, distribution arrangements and trade secrets, and/or ideas.
"Community License" means the Xpress license available to the general community which may have limited
features and additional restrictions as set forth in the Documentation and is subject to the license terms as set forth in
Section 2.3 below.
"Desktop Computer" means a single user computer used locally and not remotely accessed, including desktop,
laptop and netbook computers with no more than 1 physical CPU processor.
"Development License" means Client is entitled to use the Fair Isaac Product only for the purpose of developing,
testing, prototyping the Client's application, solution or model, and not for any other purpose.
"Discloser" means a party that discloses or provides Confidential Information pursuant to this Agreement.
"Documentation" means the Fair Isaac Product standard user documentation that is provided with the Fair Isaac
Product.
"Intellectual Property" means all or any of the following in any country worldwide, whether or not filed or
registered: (i) patents, (ii) copyrights (including moral rights); (iii) database rights; (iv) know-how or trade secrets,
whether or not developed or reduced to practice; (v) industrial designs (including utility models); (vi) trademarks,
service marks, logos, Internet addresses (URLs), and the goodwill associated therewith; (vi) semi-conductor
topography rights; and (vii) any other proprietary rights relating to intangible property anywhere in the world.
"Model" means an instance of a mathematical optimization model.
"Non-Production" means the right to use the Fair Isaac Product in Client's non-production test environment only.
"Purchasing/Quotation Documentation" means any and all documentation (other than Documentation), including
but not limited to Fair Isaac quotations, Purchase Orders, and invoices, that describes the number of licenses
purchased and the limitations on those licenses. Limitations may be based on, among other things, number of
concurrent users, number of personal computers, platforms, usage, department, feature, capacity, license type and
Non-Production.
"Recipient" means a party that receives Confidential Information of Discloser pursuant to this Agreement.
"Server Computer" means a single or multi-user computer accessed locally or remotely, with any number of
physical CPU processors
"Sub-Model License" means a license restricted to solving Sub-Models.
"Sub-Model" means an instance of a mathematical optimization model that is executed by the MMJOBS module of
the Fair Isaac Product during the processing of a Model.
"Territory" means the geographic region in which Client is permitted to install and use the Fair Isaac Product.
Territory will generally be specified in the Purchasing/Quotation Documentation. If the Territory is not specified in
the Purchasing/Quotation Documentation, the Territory is the country where Client specifies the Fair Isaac Product
is to be shipped. For example, if Client specifies the Fair Isaac Product is to be shipped to a United States address,
the Territory will be the United States.
"Workstation Computer" means a single or multi-user computer accessed locally or remotely, with no more than 2
physical CPU processors.
"Third Party Software" means the products of third parties, if any, provided in connection with or embedded
within a Fair Isaac Product.
"tau-Argus" means a third party software application designed to protect statistical tables.
2. RIGHTS AND RESTRICTIONS.
2.1 Grant of License - Paid License. If Client is paying a fee for the license to the Fair Isaac Product (as set
forth in the Purchasing/Quotation Documentation), then, subject to the terms and conditions of this Agreement, Fair
Isaac hereby grants Client, and Client hereby accepts, a non-exclusive, non-transferable, non-sublicensable limited
license to use the Fair Isaac Product, Third Party Software (solely in connection with the Fair Isaac Product) and
Documentation during the term (see Section 8.1) for its internal business purposes, but only within the Territory, and
subject to the limitations set forth below and/or listed in the Purchasing/Quotation Documentation.
(a) Desktop/Personal Computer License. If the license for the Fair Isaac Product is designated by the
Purchasing/Quotation/ Documentation as a Desktop or Personal Computer License then Client is entitled to
operate the Fair Isaac Product on one nominated Desktop or Personal Computer. Transfer of the license to a
computer other than a Desktop Computer must be approved by Fair Isaac and may incur additional fees. A
Desktop License cannot be used to remotely access the Fair Isaac Product by any means, including network
access and web service technologies. A Desktop License cannot be used with an intranet or internet web
application or service. An individual Desktop License entitles the Client to run one concurrent copy of the
Fair Isaac Product to solve a maximum of one individual Model concurrently. For the avoidance of doubt,
an individual Desktop License can be used to solve a maximum of one Model and Sub-Model concurrently.
(b) Workstation License: If the license for the Fair Isaac Product is designated by the
Purchasing/Quotation Documentation as a Workstation License then Client is entitled to operate the Fair
Isaac Product on one Workstation Computer. Transfer of the license to a computer other than a Workstation
Computer must be approved by Fair Isaac and may incur additional fees. A Workstation License can be
used to remotely access the Fair Isaac Product by network access technologies excluding web services. A
Workstation License cannot be used with an intranet or internet web application or service. An individual
Workstation License entitles the Client to run one concurrent copy of the Fair Isaac Product to solve a
maximum of one individual Model concurrently. For the avoidance of doubt, an individual Workstation
License can be used to solve a maximum of one Model and Sub-Model concurrently.
(c) Unlimited Use Server License: If the license for the Fair Isaac Product is designated by the
Purchasing/Quotation Documentation as an Unlimited Use Server License then Client is entitled to operate
the Fair Isaac Product on one nominated Server Computer, Workstation Computer or Desktop Computer.
Transfer of the license to a Server Computer with hardware components different to those listed on the
Purchasing/Quotation Documentation must be approved by Fair Isaac and may incur additional fees. An
individual Unlimited Use Server License entitles the Client to run an unlimited number of copies of the Fair
Isaac Product to solve an unlimited number of Models and Sub-Models concurrently on the nominated
Server.
(d) Concurrent User License. If the license for the Fair Isaac Product is designated in the
Purchasing/Quotation Documentation as limited to a specified number of users or concurrent users, Client
shall be entitled to install the Fair Isaac Product on a server that is accessed by one or more users through a
local area network, provided that the number of users accessing the Fair Isaac Product at any one time does
not exceed the number of users purchased with the license.
(e) Floating License. If the license for the Fair Isaac Product is designated in the
Purchasing/Quotation Documentation as limited to a specified number of users or concurrent users, Client
shall be entitled to install the Fair Isaac Product on an unlimited number of machines on the Clients local
network, provided that the number of Models and Sub-Models being executed concurrently by the Fair
Isaac Product at any one time does not exceed the number of concurrent uses purchased with the license.
(f) Development License. If the license for the Fair Isaac Product is designated by the
Purchasing/Quotation Documentation as Development License, Client shall not use the application,
solution or model developed under this license for any internal data processing or for any commercial,
operational, production or runtime purposes.
(g) Sub-Model License. If the license for the Fair Isaac Product is designated by the
Purchasing/Quotation Documentation as a Sub-Model License, then it may only be used in conjunction
with a license that is not a Sub-Model License to solve one Sub-Model concurrently. A Sub-Model license
may only be used to solve a Sub-Model. For the avoidance of doubt, a license or Sub-Model License is
required for each Sub-Model that executes concurrently.
(h) Dongle. If the license for the Fair Isaac Product is designated in the Purchasing/Quotation
Documentation as for use with a purchased hardware USB dongle device, Client shall be entitled to install
the Fair Isaac Product on an unlimited number of machines on the Clients local network and authorize a
maximum of one copy of the Fair Isaac Product on one machine concurrently using the dongle provided.
(i) Tau-Argus. If the license for the Fair Isaac Product is designated in the Purchasing/Quotation
Documentation for use with tau-Argus, Client may use the Fair Isaac Product solely in connection with the
tau-Argus application and not for any other purpose.
Other Limitations. If the license for the Fair Isaac Product is limited in the Purchasing/Quotation Documentation in
any other manner, Client's use of the Fair Isaac Product is subject to those other limitations. These additional
limitations may be based on, among other things, department, features, capacity, and license type.
2.2 Grant of License - Evaluation License. If Client is receiving a no-charge evaluation license to the Fair
Isaac Product (either through access to Fair Isaac's electronic evaluation site or otherwise), then subject to the terms
and conditions of this Agreement, this Section 2.2 (not Section 2.1) defines the license granted to Client. Fair Isaac
hereby grants Client and Client hereby accepts, a non-exclusive, non-transferable, non-sublicensable limited license
to use the Fair Isaac Product and Documentation for a period of thirty (30) days from the date of delivery solely for
Non-Production purposes to evaluate whether Client desires to make a future license purchase, but only within the
Territory, and subject to the limitations set forth below and/or imposed by Fair Isaac. At the conclusion of the
evaluation period, Client shall immediately cease all use of the Fair Isaac Product in accordance with Section 8.3.
2.3 Grant of License - Community License. If Client is receiving a Community License, then subject to the
terms and conditions of this Agreement and this Section 2.3, Fair Isaac hereby grants Client and Client hereby
accepts an individual non-exclusive, non-transferable non-sublicensable limited license to access via the web for
download or for cloud based use. The use of the Fair Isaac Product and Documentation is for personal use and /or
commercial use. The Community License is provided "AS IS" without any warranty. If Client wishes support for
the Fair Isaac Product, Fair Isaac will provide such support pursuant to a fee based maintenance and support
agreement. As a condition of the license grant herein, Client may not upload any personally identifiable or other
protected personal data ("Personal Data").
2.4 License Restrictions. Client and, if Client is an entity, its employees, shall not: (i) use the Fair Isaac
Product, Third Party Software or Documentation for any purpose other than the internal business operations of
Client or in any other manner that exceeds the scope of the license granted under this Agreement or that otherwise
constitutes a breach of this Agreement; (ii) modify, adapt, translate or make derivative works from any Fair Isaac
Product or Third Party Software; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to reduce the
object code of the Fair Isaac Product or Third Party Software to human perceivable form or permit others to do so;
(iv) disclose the Fair Isaac Product or Third Party Software to, or permit the use or access of the Fair Isaac Product
or Third Party Software by any third party or by any individuals other than Client, or, if Client is an entity, the
employees of Client; (v) assign, sublicense, lease, transfer or distribute the Fair Isaac Product or Third Party
Software, or operate the Fair Isaac Product or Third Party Software for timesharing, rental, outsourcing, or service
bureau operations (or otherwise for the benefit of any party other than Client), or train persons other than permitted
users; (vi) disclose or publish performance benchmark results for Fair Isaac Product or Third Party Software without
Fair Isaac's prior written consent; or (vii) use any provided Third Party Software except in conjunction with the Fair
Isaac Product.
2.5 Reservation of Rights Not Granted. Fair Isaac reserves all rights not expressly granted to Client under this
Agreement. Without limiting the foregoing, Fair Isaac retains and reserves sole and exclusive worldwide rights in all
Fair Isaac Intellectual Property, including without limitation, the Fair Isaac Product, any custom code developed in
whole or part by Fair Isaac (if applicable), and any Fair Isaac know-how, subject to only the limited, non-exclusive
license rights granted in this Agreement. Nothing in this Agreement limits in any way Fair Isaac's right to develop,
use, license, create derivative works of, or otherwise exploit Fair Isaac Intellectual Property or to permit third parties
to do so.
2.6 Permission for Back-Up Copy. If Client pays a fee for a back-up license to the Fair Isaac Product, Client
may reproduce the Fair Isaac Product only for the purpose of exercising the license rights granted under this
Agreement on a back-up CPU in the event of a malfunction that renders the primary CPU inoperable.
2.7 Notice Reproduction. Client shall reproduce on each copy of the Fair Isaac Product and Documentation it is
permitted to make any copyright, patent or trademark notice and any other proprietary legends that were provided in
originals.
2.8 Platforms/Options. Client obtains the right to use only the version of the Fair Isaac Product for the specific
supported platform(s) that are noted in the Purchasing/Quotation Documentation (i.e., C/C++, VB, Java, .NET,
Hyper Capacity (for 32-bit machines) or Hyper64 Capacity for 64-bit machines). If no platform is noted in the
Purchasing/Quotation Documentation, Client has the right to use the Fair Isaac Product only for the supported
platform(s) that is(are) initially delivered to Client. If Client desires versions of the Fair Isaac Product for additional
supported platforms, an additional fee applies. Unless specifically noted as being purchased in the
Purchasing/Quotation Documentation, Client does not obtain any right to options or additional related products.
3. CONFIDENTIAL INFORMATION.
3.1 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 this Agreement.
3.2 Exceptions. Recipient's obligation under this 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 part of the public domain
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 this Agreement.
3.3 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
this 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.
3.4 Injunctive Relief. Notwithstanding anything to the contrary provided in Section 9.4 (Resolution of
Disputes), 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 this Agreement relating to the protection of its Confidential Information or
Intellectual Property rights.
4. LIMITED WARRANTIES.
4.1 Conformity to Specifications. Fair Isaac warrants that the Fair Isaac Product delivered hereunder will
conform in all material respects to its Documentation for a period of 30 days from the date of initial delivery or
download of the Fair Isaac Product. Fair Isaac shall, at its own expense and as its sole obligation and Client's
exclusive remedy for any breach of this warranty, correct any reproducible error in the Fair Isaac Product reported to
Fair Isaac by Client in writing (along with all information available to Client that is relevant to verifying,
diagnosing, or correcting the error) or replace the Fair Isaac Product.
4.2 WARRANTY DISCLAIMER. Fair Isaac does not warrant that the Fair Isaac Product will (i) meet Client's
requirements, (ii) operate in combination with hardware, software, systems or data not expressly specified in writing
by Fair Isaac (iii) meet any performance level, resource utilization, response time, or system overhead requirements,
or (iv) operate uninterrupted, free of errors, or without delay. Fair Isaac is not responsible for problems caused by:
(a) use of the Fair Isaac Product outside the scope of this Agreement or not in compliance with the Documentation;
(b) any modification to the Fair Isaac Product not made by Fair Isaac; (c) any change in or modification to the
operating characteristics of the Client's system that is inconsistent with the requirements of the Documentation; (d)
use of the Fair Isaac Product with hardware or software that is not represented in the Documentation as interoperable
with the Fair Isaac Product; or (e) accident, physical, electrical or magnetic stress, failure of electric power or
environmental controls, or causes other than ordinary use. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN THIS AGREEMENT, FAIR ISAAC MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, UNDER THIS AGREEMENT AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING ANY WARRANTIES REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. IF CLIENT IS RECEIVING A LICENSE TO THE SOFTWARE FOR EVALUATION PURPOSES
OR A COMMUNITY LICENSE, THE WARRANTY SET FORTH IN SECTION 4.1 WILL NOT APPLY, AND
CLIENT ACKNOWLEDGES AND AGREES THAT THE FAIR ISAAC PRODUCT IS LICENSED ON AN "AS
IS" BASIS WITHOUT ANY WARRANTY. CLIENT IS SOLELY RESPONSIBLE FOR ITS USE OF ANY
PRODUCTS, SERVICES, AND DELIVERABLES PROVIDED BY FAIR ISAAC UNDER THIS AGREEMENT
AND FOR ANY LIABILITY ARISING OUT OF DATA OR CONTENT SUPPLIED BY CLIENT.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL FAIR ISAAC BE LIABLE UNDER ANY
THEORY OF RECOVERY (INCLUDING BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, TORT
AND STRICT LIABILITY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,
CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, INCOME, PROFIT OR
SAVINGS) OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY FAIR ISAAC PRODUCT OR SERVICE, EVEN IF FAIR ISAAC HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY
FORESEEABLE. WITHOUT LIMITING THE FOREGOING, FAIR ISAAC'S AGGREGATE LIABILITY IN
CONNECTION WITH THIS AGREEMENT UNDER ANY AND ALL THEORIES OF RECOVERY
(INCLUDING BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, TORT AND STRICT LIABILITY)
WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER (EXCLUDING IMPLEMENTATION FEES
AND REIMBURSED EXPENSES) FOR THE APPLICABLE FAIR ISAAC PRODUCT OR SERVICE DURING
THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE MOST RECENT CLAIM THAT GAVE
RISE TO SUCH LIABILITY. FOR THE AVOIDANCE OF DOUBT, FAIR ISAAC'S TOTAL LIABILTY TO
CLIENT FOR THE USE OF EVALUATION OR COMMUNITY LICENSES IS LIMITED TO FIVE HUNDRED
DOLLARS ($500).
6. MAINTENANCE SERVICES AND TECHNICAL SUPPORT. Subject to the payment of the
applicable support and maintenance fees specified in the Purchasing/Quotation Documentation ("Maintenance
Fees"), Fair Isaac shall provide Client with the maintenance services ("Maintenance Services") described in Fair
Isaac's then-current software Support and Maintenance Policy as that policy may be amended or changed. A current
copy of the Support and Maintenance Policy is available on Fair Isaac's public website located at
http://www.fico.com, or a successor URL designated by Fair Isaac. Fair Isaac's support and maintenance
obligations begin on the Effective Date and will continue for an initial term of one year or such longer period
specified in the Purchasing/Quotation Documentation. Thereafter, Maintenance Services will automatically renew
for consecutive one-year terms unless Client gives Fair Isaac 30 days notice prior to the end of the current term, of
its intent not to renew or Fair Isaac designates the Software as end of Life ("EOL"), The fees for the Maintenance
Services will be reviewed approximately each anniversary of the Effective Date and may be increased by Fair Isaac.
Any increase in fees resulting from such review will not exceed the most recently available annual change in the
United States CPI. "CPI" means the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City
Average for All Items, 1982-84=100, as published by the US Bureau of Labor Statistics.
7. FEES AND PAYMENTS.
7.1 Invoices and Payments. All fees and charges (other than expenses) are set forth in this Agreement. Except
as otherwise provided, all fees, charges, and expenses must be paid within 30 days of the date of the invoice. All
amounts are payable in US Dollars (or any other currency specified on the Purchasing/Quotation Documentation) 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 within 30 days from the date it
is due, Fair Isaac may assess a late payment charge on the unpaid amount at the rate of 1.5% per month or the
highest rate allowed under applicable law, whichever is less. In addition, Fair Isaac may terminate this Agreement,
including any licenses granted to Client in this Agreement, but not until Fair Isaac has given Client written notice,
and the amount remains unpaid 30 days after Fair Isaac gives the notice. 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. Except as otherwise expressly provided, no refunds are available.
7.2 Expenses. Prices do not include reasonable travel and associated out-of-pocket expenses incurred by Fair
Isaac in connection with any services provided under this Agreement, which Client agrees to reimburse at Fair
Isaac's actual cost.
7.3 Taxes. Client is solely responsible for, and shall pay or reimburse Fair Isaac for, all Taxes "Taxes" means
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 this Agreement; (ii) associated with the payment of any amount by Client to Fair
Isaac pursuant to this Agreement; (iii) based on the license or use of the Fair Isaac Product; (iv) associated with the
importation of the Fair Isaac Product into any country other than the United States, 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. 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.
7.4 Verification and Audit Rights. On Fair Isaac's written request, Client shall provide to Fair Isaac a written
certification executed by Client or, if Client is an entity, an authorized officer or managing representative of Client
that provides the following information: (i) verification that the Fair Isaac Product is being used in accordance with
the provisions of this Agreement; (ii) list of the locations at which the Fair Isaac Product is or has been operated
during the preceding twelve-month period; and (iii) the number of Concurrent Users, Personal Computer, CPU's
and/or applications accessing or utilizing the Fair Isaac Product (as applicable per the Purchasing/Quotation
Documentation). Upon not less than ten days' prior written notice to Client, Fair Isaac may, at its expense, audit
Client's use of the Fair Isaac Product. Any such audit must be conducted during regular business hours at Client's
facilities and must be conducted so as to interfere as little as reasonably possible with Client's business activities.
Audits may be conducted no more than twice annually. If Client is discovered to be using more licenses than the
number of licenses Client has purchased, or if Fair Isaac learns as a result of the audit that Client has otherwise
materially breached this Agreement, then Client shall reimburse Fair Isaac for the expense of the audit.
8. TERM AND TERMINATION.
8.1 Term. Unless earlier terminated, this Agreement and the licenses granted hereunder commence on the
Effective Date and continue in effect (i) for paid licenses, in perpetuity, or, if applicable, for the duration of the
applicable license term set forth in the Purchasing/Quotation Documentation if the term is not perpetual; and (ii) for
evaluation licenses, for the 30-day period described in Section 2.2.
8.2 Termination. Either party may terminate this Agreement upon the occurrence of any of the following
events:
(a) Uncured Breach. Either party may terminate this Agreement for a breach by the other party of any
of the material terms of this Agreement or numerous breaches of duties or obligations hereunder that cumulatively
constitute a material breach if the breaching party fails to cure the breach(es) within 30 days from receipt of written
notice from the non-breaching party identifying the breach and requiring it to be remedied; or
(b) Insolvency. Either party may terminate this Agreement if the other party ceases to conduct
business in the ordinary course or is declared insolvent or bankrupt, or makes an assignment of substantially all of
its assets for the benefit of creditors, or a receiver is appointed, or any proceeding is demanded by, for, or against the
other party under any provision of bankrupt or insolvency legislation; or
(c) Violation of License/Confidentiality. Fair Isaac may immediately terminate this Agreement,
without a requirement for prior notice or a cure period, if Client violates any terms of the licenses granted in this
Agreement or breaches any of the provisions of this Agreement relating to the protection of Confidential
Information or Intellectual Property.
8.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, all licenses
granted to Client hereunder will terminate immediately, as will all Fair Isaac Maintenance Services obligations,
Client shall immediately cease using the Fair Isaac Product and the Documentation, shall remove all copies of the
Fair Isaac Product and Documentation from Client's computers and systems, and shall either (1) destroy all copies of
the Fair Isaac Product and Documentation in Client's possession, or (2) return to Fair Isaac all copies of the Fair
Isaac Product and Documentation in Client's possession. Client shall provide to Fair Isaac a written certification
signed by an authorized officer of Client certifying that Client has complied with the foregoing. Upon termination or
expiration of this Agreement, all unpaid fees become immediately due and payable to Fair Isaac and Client shall
immediately remit all unpaid fees to Fair Isaac.
8.4 Survival. Rights to payment and the following rights and obligations under this Agreement will survive any
termination or expiration of this Agreement: Article 1 (Definitions), Section 2.4 (License Restrictions), Section 2.5
(Reservation of Rights not Granted), Article 3 (Confidential Information), Section 4.2 (Warranty Disclaimer),
Article 5 (Limitation of Liability), Section 7.3 (Taxes), Section 7.4 (Verification and Audit Rights), Section 8.3
(Effect of Termination), Section 8.4 (Survival), and Article 9 (Miscellaneous).
9. MISCELLANEOUS.
9.1 Assignment. Client may not assign or subcontract its rights or obligations under this Agreement without the
prior written consent of Fair Isaac. In the event of a change of control of Client, or if Client is merged with, acquired
by or acquires another entity, or undergoes a reorganization or otherwise acquires the right to process the business of
another entity, each such event will be deemed to be an assignment subject to this section, and Client shall not
permit that other entity to use the Fair Isaac Product(s) or process any data from that entity through the Fair Isaac
Product(s) (either combined with Client's data or as a separate portfolio), or otherwise make any expanded use of the
Fair Isaac Product as a result of any such event unless and until Fair Isaac provides its written consent. Any attempt
to assign or transfer all or any part of this Agreement without first obtaining Fair Isaac's written consent will be void
and of no force or effect. This Agreement will be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement is to be deemed to create any right or benefit in any
person not a party to this Agreement.
9.2 U.S. Government Users. The Fair Isaac Product is "Commercial Computer Software" (as such term is
defined in 48 C.F.R. 2.101) developed exclusively at private expense. If Client is acquiring a license to the Fair
Isaac Product as or on behalf of a government agency (other than the Department of Defense), then Client's only
rights to use, copy and disclose the Fair Isaac Product and Documentation as specified in Federal Acquisition
Regulation 12.212 (48 C.F.R. 12.212), and its successors, shall be as set forth in this Commercial Computer
Software license Agreement. If Client is acquiring a license to the Fair Isaac Product as or on behalf of the
Department of Defense, then Client's only rights to use, copy and disclose the Fair Isaac Product and Documentation
as specified in DFAR 227.7202 (48 C.F.R. 227.7202), and its successors, shall be as set forth in this Commercial
Computer Software license Agreement.
9.3 Governing Law. Subject to Section 9.4 (in the event Client is not a resident of the United States or a legal
entity organized under U.S. law), this Agreement is to 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 this Agreement.
9.4 Resolution of Disputes. If Client is not a resident of the United States or a legal entity organized under U.S.
law, any dispute, claim, or controversy arising out of or relating to this Agreement, or the performance, breach,
validity, interpretation, application, or termination hereof, 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 New York, USA, administered by the American Arbitration Association ("AAA") in accordance with
the then-current AAA 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) must determine the matters at
issue in the Dispute in accordance with the governing law specified in this Agreement.
9.5 Compliance with Laws. Client is solely responsible for compliance with all laws relating to Client's use of
the Fair Isaac Product, including but not limited to export control laws and regulations.
9.6 Export Controls. In addition to any applicable license restrictions contained in this 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 this Agreement. Without limiting the foregoing, Client shall
not knowingly transfer or supply any products or services provided under this 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. If Client fails to comply
with the terms of this section, in addition to Fair Isaac's remedies at law and in equity, Fair Isaac may suspend
performance of its obligations under this Agreement until Client is in compliance.
9.7 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 this
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.
9.8 Corrupt Practices. Client represents that, in connection with this 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 this Agreement by Fair Isaac.
9.9 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 this 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 this 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.
9.10 Non-Waiver. No delay or omission by either party in exercising any right under this Agreement will be
construed as a waiver of that right. No waiver will be effective unless in writing and signed by the party waiving the
right.
9.11 Relationship of the Parties. The relationship between the parties is that of independent contractors. This
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. No employee of
a party will be deemed to be an employee of the other party by virtue of this Agreement.
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 Agreement is entered into by the parties. Fair Isaac shall
first submit the press release to Client for Client's approval. The parties may issue additional press releases from as
mutually agreed by the parties. All press releases or other publicity sought to be issued by either or both parties
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. Subject to Client's prior written consent (which
must not be unreasonably or arbitrarily withheld), Fair Isaac may include Client's name in its marketing and
promotional materials regarding the availability of any of its products or services to other clients.
9.13 Entire Agreement; Construction; Amendment. This Agreement represents the complete 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 this Agreement will
not be binding upon either party unless expressly set forth in a writing signed by authorized representatives of Client
and Fair Isaac. Notwithstanding the foregoing, if the parties have entered into a Signed License Agreement, the
terms of the Signed License Agreement will prevail over the terms of this Agreement.
9.14 Construction; Severability. This Agreement is not to be more strongly construed against either party,
regardless of who is more responsible for its preparation. If any provision of this Agreement is held to be
unenforceable, unlawful, or invalid in any respect, then that provision will be deemed ineffective only to the extent
of its illegality or invalidity, without invalidating the remainder of that provision or any of the remaining provisions
of this Agreement. If a provision is determined to be unlawful, or invalid, then that provision is to be deemed
severable from the remaining provisions of this Agreement, and the enforceability, validity, and lawfulness of the
remaining provisions will not be impaired.
9.15 Force Majeure. Notwithstanding anything to the contrary in this Agreement, Fair Isaac will not be deemed
to be in default of any provision of this Agreement or be liable to Client or to any third party for any delay, error,
failure in performance 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
service, problems with the Internet, epidemic, act of any other person not under the control or direction of either
party or other similar cause.
9.16 Headings. The article and section headings in this Agreement are for reference only, and do not form part
of this Agreement.
9.17 Notices. Any notices required to be given in writing under this Agreement must be sent to the recipient's
address or facsimile number provided in the Purchasing/Quotation Documentation. Notices will be deemed given on
the date of actual delivery, whether personally, by a recognized international overnight delivery carrier, or by
facsimile (provided that the facsimile notice is promptly confirmed in writing using another method for giving
notice provided in this section). Either party may change its address or facsimile number for notices at any time by
giving written notice to the other party.
FICO(tm) Xpress Optimization Suite
Shrinkwrap License Agreement version June 2021
(c) 1983-2024 Fair Isaac Corporation. All rights reserved. Confidential and proprietary.
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