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PHONE: +1 816 200 2595E-MAIL: shout@fmkagency.com
Work With Us

Software & Integrated Services Policy

 
Last Modified: March 1, 2024
 
 
 

Customer agrees to comply with this Software and Integrated Services Policy (this “Policy”) and to remain responsible for its Users. Services rendered under this policy may also be subject to the terms and conditions of the Hosting and Support Policy and the Creative Services Policy.  Terms not defined herein shall have the meaning set forth in the applicable Master Services Agreement (“MSA”), Estimate, or Statement of Work (“SOW”) (each an “Agreement” and collectively the “Agreements”).

  1. Software Licensing. 
    1. Incorporation of License Agreements. The software and all software upgrades and version releases and other enhancements, modifications or fixes to the software provided to Customer pursuant to any SOW constitute software licensed or sublicensed to Customer under any applicable license agreement between (i) Customer, and (ii) either FMK or the third-party vendor of such software (a “License Agreement”). Neither the MSA nor any SOW is an amendment to any such License Agreement but is a separate binding agreement that incorporates the terms of any such License Agreement. Where applicable, FMK uses and has used any and all software and other materials distributed under a free, open source, or similar licensing model ("Open Source Software") in material compliance with all license terms applicable to such Open Source Software; and FMK has not used or distributed and does not use or distribute any Open Source Software in any manner that requires or has required: (A) FMK to permit reverse engineering of any software code or other technology owned by FMK, or (B) any software code or other technology owned by FMK to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making derivative works, or (3) redistributed at no charge.

    2. Unlicensed Software. FMK does not provide support for the installation or use of unlicensed software. Customer shall ensure that it has a licensed copy of all software to which the Services shall apply.

    3. Third-Party Software Vendors. With respect to third-party software provided to Customer pursuant to an MSA: (i) Customer explicitly grants to FMK the right to share Customer’s license or sublicense information, including all license-related keys and numbers, and number of users subscribed with FMK, with the applicable third-party software vendor for verification and tracking purposes; and (ii) the applicable third-party software vendor is responsible solely for the corresponding third-party software itself, and not for the Services, nor any other product or service offered by FMK directly or through third parties.

    4. Third Party Licenses. In addition to any other fees set forth in any SOW, Customer shall be required to purchase any applicable third-party licenses for any third-party products that are necessary for FMK to provide the Services. Such third-party products may include, but are not limited to, server-side applications, clip art, “back-end” applications, music, stock images, stock video, and any other copyrighted work which FMK deems necessary to purchase on behalf of Customer in order to provide the Services. In the event that FMK purchases on Customer’s behalf any applicable third-party licenses or products, for dedicated use by FMK to provide the Services to Customer, Customer agrees to reimburse FMK for the cost of such third-party licenses and products.

  2. HUBSPOT PARTNER. FMK is an authorized Hubspot Partner and offers services and support related to Hubspot’s suite of products.  The following terms and conditions related to services provided related to Hubspot Software Products.

    1. Available Software Products. The HubSpot software products available to Customer include HubSpot’s web-based inbound marketing, sales, services and content management software that is subscribed to, and developed, operated, and maintained by HubSpot, accessible via http://www.hubspot.com or another designated URL, and any add-on products that are included with such software, but excluding: (i) add-on products alone, (ii) all HubSpot legacy sales and marketing products, and any  implementation, migration, customization, training, consulting, additional support or other professional services provided by HubSpot, and (iii) fees for third-party (other than HubSpot) products or services.

    2. Representations by Customer Regarding Eligibility. In the event that a Customer is interested in acquiring Hubspot services, Customer represents and warrants to FMK that: (i) Customer is a new potential customer of HubSpot; and (ii) Customer is not, as of the date of execution by Customer of an SOW or MSA with related Hubspot Services, or sixty (60) days prior, one of HubSpot’s pre-existing customers, involved in HubSpot’s active sales process, or an Affiliate of FMK. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with FMK. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of FMK.

    3. Software Purchase. Customer will purchase, directly from HubSpot and not from FMK, software licenses for the software listed in the table below (the “HubSpot Software”), and FMK agrees to provide training and support to Customer in the use of such software. Customer agrees that it will keep such software licenses current and sufficient.

    4. Registration With HubSpot. Prior to Customer’s purchase of the HubSpot Software from HubSpot, FMK will register Customer with HubSpot. For purposes of such registration, Customer agrees to provide FMK with a contact first name, contact last name, email, URL and company name, and agrees to allow FMK to provide such information to HubSpot. FMK does not guarantee that HubSpot will allow Customer to purchase software licenses for the HubSpot Software, and Customer acknowledges and agrees that (i) any such sale to Customer shall be in HubSpot’s sole discretion, and (ii) HubSpot may engage with Customer directly, to complete the registration process or the software license purchase process, or to conduct marketing and sales activities with Customer regarding HubSpot products.

    5. Representations by FMK Regarding Privacy. FMK represents and warrants to Customer that FMK will provide Customer’s information to HubSpot in accordance with: (i) all applicable privacy laws and regulation, and (ii) FMK’s privacy policy, available at https://fmk.agency/privacy-policy/.

    6. Access to the HubSpot Software. Once Customer has purchased from HubSpot software licenses for the HubSpot Software, FMK will provide Customer with a portal and authorization codes for Customer’s access to the HubSpot Software, including applications and data. As between FMK and Customer: (i) Customer shall retain the right to access and use the Customer portal associated with the HubSpot Software; and (ii) Customer shall own and retain all rights to all information that Customer, or FMK acting on Customer’s behalf, submits or collects via the HubSpot Software and all materials that Customer, or FMK acting on Customer’s behalf, provides or posts, uploads, inputs or submits for public display through the HubSpot Software.

    7. User Permissions in Customer Portal. In the event that FMK informs Customer that any FMK information or data that appears in the portal, providing Customer with access to the HubSpot Software, is confidential, Customer agrees to set the user permissions in the portal to control the access and visibility of all such confidential information and data of FMK in order to maintain the confidentiality of such information and data.

    8. HubSpot EULA. In conjunction with Customer's purchase of the HubSpot Software, and as a condition to FMK’s obligation to provide training and support to Customer in the use of the HubSpot Software, Customer shall execute and deliver to HubSpot the HubSpot Customer Terms of Service (each a “HubSpot EULA”) or such other form or forms as may be requested by HubSpot, and shall provide FMK with a copy of such HubSpot EULA(s).

    9. Disclaimer of Software Compatibility. FMK DOES NOT GUARANTEE COMPATIBILITY OF THE HUBSPOT SOFTWARE WITH ANY SPECIFIC CONFIGURATION OF HARDWARE OR SOFTWARE.

    10. Disclaimer Regarding Microsoft Products and Services. FMK IS NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY RELATED TO THE AVAILABILITY OR PERFORMANCE OF HUBSPOT PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO THE HUBSPOT SOFTWARE. EXCEPT AS OTHERWISE SPECIFICALLY DESCRIBED HEREIN, FMK IS NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY RELATED TO ANY REPRESENTATIONS, WARRANTIES, OR SERVICE LEVEL AGREEMENTS SET FORTH IN THE HUBSPOT EULA OR OTHERWISE MADE BY HUBSPOT WITH RESPECT TO THE SOFTWARE.

    11. HubSpot Termination. Customer acknowledges and agrees that: (i) FMK is providing training and support to Customer in the use of the HubSpot Software pursuant to a certain sales commission agreement entered into by and between FMK and HubSpot (the “Sales Commission Agreement”), and (ii) FMK may terminate some or all of its duties and obligations to Customer under this SOW with respect to the HubSpot Software immediately upon written notice to Customer in the event that HubSpot terminates all or any part of the Sales Commission Agreement or any HubSpot EULA(s). 

  3. INTEGRATED PRODUCTS. FMK is proud to partner with some of the leading providers of software solutions that integrate with our hosted open-source products. Our relationship with these providers (each a “Partner”) makes it possible for FMK to offer these integrations (each an “Integrated Product”) to its customers on the terms and conditions in this policy.  By signing a SOW or MSA that provides for the purchase of an Integrated Product, Customer agrees to comply with the terms of service for such Integrated Product.  Integrated Products are provided subject to FMK’s Hosting and Support Policy, as well as the terms and conditions of use/service of the Partner.

    1. Customer acknowledges that, in some cases, a Partner may reject an order for all or some of its Integrated Products which would prevent FMK from being able to deliver all or some of the Integrated Products to Customer. Customer hereby releases FMK from any liability related to any failure to deliver Integrated Products due to any order rejection by a Partner.

    2. Performance issues with any of Customer’s sites resulting from the configuration or use of any Integrated Product will not be subject to the terms of any FMK Agreement.

    3. Pursuant to the terms of the agreement in place between FMK and each of its Partners, Partners will treat all of Customer’s information as Confidential Information. By utilizing an Integrated Product from FMK, Customer hereby consents to the sharing and transferring of Customer’s information to that Partner and any related use of Customer’s information by the Partner, and Customer expressly releases FMK from all liability related to such sharing, transferring and use of Customer’s information and Customer waives any claims related thereto.

    4. In addition, Customer agrees to comply with reasonable requests by Partner related to Customer’s use of an Integrated Product, including, but not limited to, the execution of documentation requested by Partner related to such use. Further, should Customer exceed the amount of usage of an Integrated Product for which it has contracted, Customer hereby agrees to pay any overages that are billed by Partner as a result of such excess use.

    5. Customer also acknowledges that FMK does not have control over any Partner’s decision to discontinue or alter any Integrated Products or any Partner’s decision to terminate its partnership with FMK. In the event that any of the foregoing instances occur, Customer acknowledges that its use of the Integrated Product may cease without any liability by FMK for Customer’s inability to continue using the Integrated Product.

    6. Except as expressly set forth in an Agreement, FMK does not provide support for software integrations (each, an “Add-On”) that are not listed above. Performance issues related to the configuration or use of any Add-On shall not be subject to the performance obligations of FMK under the Agreement(s).

    7. By acquiring an Add-On, Customer may be consenting to the sharing and transferring of Customer’s information to the owner or operator of that Add-On, and any related use of Customer’s information by that owner or operator of the Add-On, and Customer expressly releases FMK from all liability related to such sharing, transferring and use of Customer’s information, and Customer hereby waives any and all claims and remedies related thereto.

    8. FMK is not responsible for the maintenance or security of any Add-On.