flashCompliance End User Licence Agreement (EULA)

Updated: 30 April 2012
 
The services and product(s) offered herein are certain computer programs and other proprietary material (the “Software”) as well as related online services (the “Services”), the use of which are subject to this end user licence agreement (“Agreement”). Using the Software and/or accessing or registering for the Services constitute Your and Your company’s assent to and acceptance of this Agreement. If You are assenting and accepting these terms on behalf of Your company, You represent that You have the authority to bind Your company. If You do not agree with all terms, You must not download the Software to Your systems and/or access or register for the Services, including accessing or copying any manuals and documentation. Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of Fraigneux Solutions Ltd. shall be construed as an inference to the contrary. If You have ordered the Software or the services, Fraigneux Solutions Ltd.’s acceptance is expressly conditional on Your assent to these terms to the exclusion of all other terms. Continued use of the Software or continue access of the Services by You will constitute Your acceptance of this Agreement.
Your failure to abide by this Agreement or any other terms or conditions posted anywhere within the Services may result in suspension or termination of Your use of the Software or access to the Services, without notice, in addition to Fraigneux Solutions Ltd.’s other remedies.

I. THE SOFTWARE
1. LICENCE GRANT. Subject to the terms of this Agreement, Fraigneux Solutions Limited (“Fraigneux Solutions”) hereby grants to You (“You”) a limited, nontransferable, nonsublicensable, nonexclusive licence to install and operate the object code version of the Software solely on authorised systems, computers or mobile devices, solely to interact with, and allow the collection of data by, the Services and solely up to the number of licences acquired by You.
2. LICENCE RESTRICTIONS. You may not, directly or indirectly: (a) modify, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or the underlying ideas or algorithms of the Software, except to the extent applicable statutory law expressly prohibits such restrictions; (b) create derivative works based on the Software; (c) use the Software for performing comparisons or other “benchmarking” activities; (d) copy, rent, lease, distribute, or otherwise transfer rights to the Software; or (e) remove any proprietary notices or labels on the Software.
3. USER CONTENT. You understand and agree that Fraigneux Solutions accepts makes no warranty, expressed or implied, to the users of the Services and accepts no responsibility for their use. Users of the Software assume sole responsibility for determining the appropriateness of its use in any particular application; for any conclusion drawn from the results of its use; and for any actions taken or not taken as a result of assessments or surveys performed using these tools. You understand that the Software is intended for use only by those competent in the relevant field of use, and is intended only to supplement the informed judgement of the qualified user.
II. THE SERVICES
1. ACCESS GRANT. Subject to the terms and conditions of this Agreement, Fraigneux Solutions shall provide You with access rights to the flashForm and/or flashCloud online services (the “Services”), solely in accordance with this Agreement, solely for use with the Software, solely for Your internal business purposes and up to the number of authorised users for whom access rights have been purchased in accordance with this Agreement.
2. REGISTRATION. The Services require that You register and/or set up an account to use all or a portion of the Services. In order to do so, You may be provided, or required to choose, a password, User Id, and/or other registration information, such as credit card information for payment of Services (collectively, the “Registration Information”). You agree and represent that all Registration Information provided by You is accurate and up-to-date. If any of Your Registration Information changes, You must immediately update it by editing Your customer profile on the Services. In our sole discretion, Fraigneux Solutions may refuse to grant You a user name that impersonates someone else, is protected by trademark or other proprietary right law, or is offensive. You are solely responsible for maintaining the confidentiality of Your Registration Information, and for any failure to do so. You are solely responsible for all use of the Services by You and anyone You allow to access the Services.
3. SECURITY. If You have reason to believe that Your account is no longer secure (e.g. loss, theft or unauthorised disclosure or use of Your Registration Information or computer or mobile device used to access the Services), You must promptly change the affected Registration Information and notify Fraigneux Solutions via the ‘Contact Us’ page on the flashCompliance website (the “Site”). If You install any software or enable any service that stores information from the Services on any mobile device or computer, it is Your responsibility, prior to transfer of such device, to remove Your information or otherwise disable access to such software or service, in order to prevent unauthorised access to Your information or account.
4. USE OF THE SERVICES. Unless otherwise specified, the Services are solely intended for Your internal business purposes only. You agree to use the Services only for lawful purposes and You acknowledge that Your failure to do so may subject You to civil and criminal liability. 
You will not, nor attempt to do, any of the following with respect to the Services, except as expressly authorised or enabled by Fraigneux Solutions: (a) Access the Services in a manner or through an interface not provided or authorised by Fraigneux Solutions including but not limited to, any automated means (e.g. scripts or bots); (b) Reproduce, duplicate, copy, sell, trade, resell or exploit the Services; (c) Republish or syndicate the information available on the Services.
5. USER CONDUCT. You agree not to use the Services to upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable. You further agree not to upload, post, transmit, share or otherwise make available any unsolicited or unauthorised advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. You hereby represent and warrant that You will not use the Services to violate, misappropriate or infringe rights of third parties, including intellectual property rights.
6. COMPLIANCE WITH LAWS AND AGREEMENT. You agree to use the Services only for purposes that are permitted by any applicable law, rules or regulations, and as permitted by this Agreement.
7. INTERFERENCE. You agree not to disrupt, overwhelm, attack, modify or interfere with the Services or its associated software, hardware and/or servers in any way, and You agree not to impede or interfere with others’ use of the Services. You further agree not to alter or tamper with any information or materials on or associated with the Services. Other than connecting to Fraigneux Solutions’ servers by http requests using a Web browser, You may not attempt to gain access to Fraigneux Solutions’ servers by any means - including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Services or otherwise.
8. USER CONTENT. You are solely responsible for the reviews, messages, notes, text, information, business data, photos, profiles, and any other content that You upload, publish or display (hereinafter, “post”) on or through the Services, or transmit to or share with other users (collectively the “User Content”). You may not post, transmit, or share User Content on the Services that You did not create or that You do not have permission to post, transmit, or share. You understand and agree that Fraigneux Solutions may, but is not obligated to, review the Services and may delete or remove (without notice) any User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of Fraigneux Solutions violates this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at Your sole cost and expense for creating backup copies and replacing any User Content You post or store on the Services or provide to Fraigneux Solutions. You understand and agree that Fraigneux Solutions accepts makes no warranty, expressed or implied, to the users of the Services and accepts no responsibility for their use. Users of the Software and Services assume sole responsibility for determining the appropriateness of its use in any particular application; for any conclusion drawn from the results of its use; and for any actions taken or not taken as a result of assessments or surveys performed using these tools. You understand that the Services are intended for use only by those competent in the relevant field of use, and are intended only to supplement the informed judgement of the qualified user.
9. OWNERSHIP OF USER CONTENT. Fraigneux Solutions does not assert any ownership over Your User Content. You retain full ownership of all of Your User Content and any intellectual property rights or other proprietary rights associated with Your User Content. You represent, warrant and agree that no materials or information of any kind submitted through Your account or otherwise posted, transmitted, or shared by You on or through the Services will violate or infringe upon the rights of any third party, including copyright, trademark, trade secrets, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. During the term of the access rights to the Services, You grant to Fraigneux Solutions a limited, non-exclusive licence to store, copy, use, encrypt, aggregate, modify or display User Content solely to the extent necessary to provide the Services to You. Fraigneux Solutions will not use User Content for any other purpose. Upon termination or expiration of this Agreement for any reason, Fraigneux Solutions will destroy all User Content in its possession except as required by law unless You request otherwise in writing.
III. INTELLECTUAL PROPERTY
1. TITLE. As between the parties, Fraigneux Solutions and its licensors retain all right, title, and interest, including, without limitation, all intellectual property rights to the Software and/or the Services. You understand that Fraigneux Solutions may modify or discontinue offering the Software or the Services at any time. The Software and Services are protected by the intellectual property laws of England and Wales, the United States and international treaties. This Agreement does not give You any rights not expressly granted herein. You understand that the Software is licensed and not sold, and that You get an access right to the Services not a proprietary interest.
2. USE OF MATERIAL. The Services contain material that is protected by state, national and international copyright, trademark and other intellectual property laws. You may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any material, including code and software, from the Services. You may download material from the Services and may use the Services for Your business use only, provided You keep intact all copyright and other proprietary notices.
3. OWNERSHIP AND CONTROL. The content, organisation, graphics, text, images, video, design, mark up language, compilation, trademarks, service marks, logos, slogans, advertising and all other material on or used for the Software and/or the Services, including without limitation, the “look and feel” of the Software and Site(s), are protected under applicable copyrights and other proprietary (including but not limited to intellectual property) rights and are the property of Fraigneux Solutions or its licensors. The copying, rearrangement, redistribution, modification, use or publication by You, directly or indirectly, of any such matters or any part of the Site, including but not limited to the removal or alteration of advertising, except for the limited rights of use granted hereunder, is strictly prohibited.
4. FEEDBACK. If You provide Fraigneux Solutions with feedback, suggestions, testimonials, comments, ideas, ratings, reviews, bug reports, or any similar or related information (“Feedback”), You agree that (a) any and all right, title and interest to such Feedback shall become the exclusive property of Fraigneux Solutions; (b) Fraigneux Solutions shall be able to use and share such Feedback without Your consent; (c) Fraigneux Solutions owes You no obligation or compensation whatsoever regarding the Feedback; and (d) Fraigneux Solutions may already have contemplated or be contemplating the same or similar ideas as Your Feedback. If You do not agree with these terms regarding Feedback, or want to maintain ownership of any intellectual property contained in any specific Feedback, Your sole option and recourse is to not submit such specific Feedback to Fraigneux Solutions.
IV. CONFIDENTIALITY
Except as expressly allowed by this Agreement, You will not use or disclose any Software, software or related technology, idea, algorithm or information except to the extent You can document that it is generally available for use and disclosure by the public without any charge or licence. User Content is Your confidential information.
V. ECONOMIC TERMS
1. SERVICES. If You subscribe to the Services, You agree to pay any and all applicable fees (e.g. one time, recurring monthly, annual subscription fees for accounts) incurred in connection with Your account at the rates in effect when the charges were incurred. If You terminate Your account, such termination will be effective immediately, and You will not receive a refund for any amounts You already paid. You agree to pay any applicable taxes, and reimburse us for any collection costs and interest for any overdue amounts.
2. FREE TRIAL OFFERS. If You receive a free offer for a specific number of days, You will not be charged during the free offer time period. To continue service after the trial period has expired requires a paid subscription.
3. NO REFUNDS. Unless we state in writing otherwise, all fees and charges are nonrefundable.
4. THIRD PARTY CHARGES AND MOBILE ALERTS. You are solely responsible for any fees or charges incurred to access the Services through an internet access provider or other third party, including without limitation charges incurred to receive SMS messages or other mobile access, which may be billed to You or deducted from Your prepaid balance by Your mobile provider. You agree that Fraigneux Solutions is not liable in any way for any third party charges.
VI. INDEMNIFICATION
You agree to indemnify Fraigneux Solutions and its affiliates, employees, agents, representatives and third party services providers, and to defend and hold each of them harmless, from any and all claims and liabilities (including attorney’s fees) which may arise from Your submissions, from Your unauthorised use of material obtained through the Services, or from Your breach of this Agreement, or from any such acts through Your use of the Services or the Software(s).
VII. DISCLAIMER
Except as expressly set forth herein, to the maximum extent permitted by applicable law, Fraigneux Solutions disclaims any and all other promises, representations and warranties, either expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, system integration, data accuracy, title and/or non-infringement. Fraigneux Solutions does not warrant that the product(s) or services will meet Your requirements or that the operation of the services or use of the product(s) will be uninterrupted or error-free, or that all errors will be corrected.
VIII. LIMITATIONS OF LIABILITY
To the maximum extent permitted by applicable law, in no event will Fraigneux Solutions be liable to You for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, including user content and/or use of the services or product(s) by You, even if Fraigneux Solutions has been advised of the possibility of such damages. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. The cumulative liability of Fraigneux Solutions to You for all claims arising from or relating to this Agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the greater of: (a) fifty pounds (GBP£50); or (b) fifty percent of the pro rata licence fees paid to Fraigneux Solutions by You under this Agreement for the Services from the act, omission or event giving rise to such liability until the licence expiry or renewal date. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. You hereby agree to release Fraigneux Solutions, its licensors, its affiliates and third-party service providers, and each of their respective directors, officers, employees and agents, from claims, demands and damaged (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way connected with Your use of the product(s) or services.
IX. TERM AND TERMINATION
This Agreement shall continue until terminated as set forth herein. You may terminate this Agreement at any time. Fraigneux Solutions has the right to terminate and/or suspend Your ability to access the Services or any portion thereof, for any or no reason, subject to providing at least thirty days of notice in writing. Notwithstanding, Fraigneux Solutions has the right to suspend, modify or terminate Your ability to access the Services or any portion thereof in exceptional circumstances, without notice, for maintenace or repair purposes. Any termination of this Agreement shall terminate the licences granted hereunder. Upon termination of this Agreement for any reason, You shall destroy and remove from all equipment, computers, hard drives, mobile devices, networks, and other storage media all copies of the Software. Except for the licence and except as otherwise expressly provided herein, the terms of this Agreement shall survive termination.
X. DISPUTE RESOLUTION
If a dispute arises between You and Fraigneux Solutions, our goal is to provide You with a neutral and cost effective means of resolving the dispute quickly. Accordingly, You and Fraigneux Solutions agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (each, a “Claim”) in accordance with one of the subsections below or as Fraigneux Solutions and You otherwise agree in writing. Before resorting to these alternatives, we strongly encourage You to first contact us directly to seek a resolution.
1. LAW AND FORUM FOR DISPUTES. This Agreement shall be governed by and construed under the laws of England and Wales without regard to the conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. You agree that any claim or dispute You may have against Fraigneux Solutions must be resolved by a court located in England and Wales, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within England and Wales for the purpose of litigating all such claims or disputes and You hereby agree to service of process in accordance with the rules of such courts.
2. ARBITRATION. For any claim (excluding claims for injunctive or other equitable relief), Fraigneux Solutions may elect to resolve the dispute through binding non-appearance-based arbitration. In the event Fraigneux Solutions elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider and such arbitration shall be conducted in accordance with such provider’s rules for non-appearance-based arbitration.
3. IMPROPERLY FILED CLAIMS. All claims You bring against Fraigneux Solutions must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to the Dispute Resolution Section shall be considered improperly filed. Should You file a claim contrary to the Dispute Resolution Section, Fraigneux Solutions may recover reasonable attorneys’ fees and costs, provided that Fraigneux Solutions has notified You in writing of the improperly filed claim, and You have failed to promptly withdraw the claim.
XIII. GENERAL PROVISIONS
This Agreement represents the complete agreement between the parties regarding the subject matter herein and supersedes all prior agreements and representations. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of Fraigneux Solutions to act with respect to a breach of this Agreement by You or others does not constitute a waiver and shall not limit Fraigneux Solutions’ rights with respect to such breach or any subsequent breaches. This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganisation, or as a result of an acquisition or change of control involving You) without Fraigneux Solutions’ consent and any action or conduct in violation of the foregoing shall be void and without effect. You may not sub-license, transfer, sell or assign Your Registration Information and/or this Agreement to any third party without Fraigneux Solutions’ written approval. Any attempt to do so will be null and void and shall be considered a material breach of this Agreement. Fraigneux Solutions may, in its sole discretion, assign this Agreement. Headings are for reference purposes only and do not limit the scope or extent of such section.