FloorLink.net hereby grants you a non-exclusive, non-transferable, worldwide
right to use the Service, solely for your own internal business purposes,
subject to the terms and conditions of this Agreement. All rights not
expressly granted to you are reserved by FloorLink.net and its licensors.
You may not access the Service if you are a direct competitor of FloorLink.net,
except with FloorLink.net's prior written consent. In addition, you may not
access the Service for purposes of monitoring its availability, performance
or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign,
distribute or otherwise commercially exploit or make available to any third
party the Service or the Content in any way; (ii) modify or make derivative
works based upon the Service or the Content; or (iii) reverse engineer or
access the Service in order to (a) build a competitive product or service,
(b) build a product using similar ideas, features, functions or graphics of
the Service, or (c) copy any ideas, features, functions or graphics of the
Service. User licenses cannot be shared or used by more than one individual
User but may be reassigned from time to time to new Users who are replacing
former Users who have terminated employment or otherwise changed job status
or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall
not: (i) send spam or otherwise duplicative or unsolicited messages in
violation of applicable laws; (ii) send or store infringing, obscene,
threatening, libelous, or otherwise unlawful or tortuous material, including
material harmful to children or violative of third party privacy rights;
(iii) send or store material containing software viruses, worms, Trojan
horses or other harmful computer code, files, scripts, agents or programs;
(iv) interfere with or disrupt the integrity or performance of the Service
or the data contained therein; or (v) attempt to gain unauthorized access
to the Service or its related systems or networks.
Certain editions of the Service offer integration capabilities via an
application programming interface, or API. The number of API calls you
can make per account is limited as follows (excluding calls resulting
from use of FloorLink.net client applications, such as FloorEstimate Pro
online edition).
Some functions such as Campaign has limitations on the number of emails
you may send out per day. Please check with your account manager for
the details.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts
and shall abide by all applicable local, state, national and foreign
laws, treaties and regulations in connection with your use of the
Service, including those related to data privacy, international
communications and the transmission of technical or personal data.
You shall: (i) notify FloorLink.net immediately of any unauthorized
use of any password or account or any other known or suspected breach
of security; (ii) report to FloorLink.net immediately and use reasonable
efforts to stop immediately any copying or distribution of Content that
is known or suspected by you or your Users; and (iii) not impersonate
another FloorLink.net user or provide false identity information to gain
access to or use the Service.
4. Account Information and Data
FloorLink.net does not own any data, information or material that you
submit to the Service in the course of using the Service ("Customer Data").
You, not FloorLink.net, shall have sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness, and intellectual
property ownership or right to use of all Customer Data, and FloorLink.net
shall not be responsible or liable for the deletion, correction, destruction,
damage, loss or failure to store any Customer Data. FloorLink.net reserves
the right to withhold, remove and/or discard Customer Data without notice
for any breach, including, without limitation, your non-payment. Upon
termination for cause, your right to access or use Customer Data immediately
ceases, and FloorLink.net shall have no obligation to maintain or forward any
Customer Data.
5. Intellectual Property Ownership
FloorLink.net alone (and its licensors, where applicable) shall own all right,
title and interest, including all related Intellectual Property Rights, in and
to the FloorLink.net Technology, the Content and the Service and any
suggestions, ideas, enhancement requests, feedback, recommendations or other
information provided by you or any other party relating to the Service. This
Agreement is not a sale and does not convey to you any rights of ownership in
or related to the Service, the FloorLink.net Technology or the Intellectual
Property Rights owned by FloorLink.net. The FloorLink.net name, the FloorLink.net
logo, and the product names associated with the Service are trademarks of
FloorLink.net (a division of Floor Covering Soft) or third parties.
6. Third Party Interactions
During the use of the Service, you may enter into correspondence with, purchase
goods and/or services from, or participate in promotions of advertisers or
sponsors showing their goods and/or services through the Service. Any such
activity, and any terms, conditions, warranties or representations associated
with such activity, is solely between you and the applicable third-party.
FloorLink.net and its licensors shall have no liability, obligation or
responsibility for any such correspondence, purchase or promotion between
you and any such third-party. FloorLink.net does not endorse any sites on
the Internet that are linked through the Service. FloorLink.net provides
these links to you only as a matter of convenience, and in no event shall
FloorLink.net or its licensors be responsible for any content, products,
or other materials on or available from such sites. FloorLink.net provides
the Service to you pursuant to the terms and conditions of this Agreement.
You recognize, however, that certain third-party providers of ancillary
software, hardware or services may require your agreement to additional
or different license or other terms prior to your use of or access to
such software, hardware or services.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the
fees, charges, and billing terms in effect at the time a fee or charge
is due and payable. The initial charges will be equal to the current
number of total User licenses requested times the User license fee
currently in effect. Payments may be made annually, monthly, or quarterly,
consistent with the Initial Term, or as otherwise mutually agreed upon.
All payment obligations are non-cancelable and all amounts paid are
non-refundable. You are responsible for paying for all User licenses
ordered for the entire License Term, whether or not such User licenses
are actively used. You must provide FloorLink.net with valid credit card
or approved purchase order information as a condition to signing up for
the Service. An authorized License Administrator may add licenses by
executing an additional written Order Form or using the Online Store
checkout. Added licenses will be subject to the following: (i) added
licenses will be coterminous with the preexisting License Term (either
Initial Term or renewal term); (ii) the license fee for the added licenses
will be the then current, generally applicable license fee; and (iii)
licenses added in the middle of a billing month will be charged in full
for that billing month. FloorLink.net reserves the right to modify its
fees and charges and to introduce new charges at any time, upon at least
30 days prior notice to you, which notice may be provided by e-mail. All
pricing terms are confidential, and you agree not to disclose them to any
third party.
8. Excess Data Storage Fees
The maximum disk storage space provided to you at no additional charge is
(i) 5 MB per User license for free trial account Edition, (ii) 1 GB per
5-User license package for Team Edition, or (iii) the greater of 1 GB or
an aggregate of 200 MB per User license, for Multi-store and Enterprise
Edition. If the amount of disk storage required exceeds these limits,
you will be charged the then-current storage fees. FloorLink.net will
use reasonable efforts to notify you when the average storage used per
license reaches approximately 90% of the maximum; however, any failure
by FloorLink.net to so notify you shall not affect your responsibility
for such additional storage charges. FloorLink.net reserves the right
to establish or modify its general practices and limits relating to
storage of Customer Data.
9. Billing and Renewal
FloorLink.net charges and collects in advance for use of the Service.
FloorLink.net will automatically renew and bill your credit card or
issue an invoice to you (a) every month for monthly licenses, (b) every
quarter for quarterly licenses, (c) each year on the subsequent anniversary
for annual licenses, or (d) as otherwise mutually agreed upon. The renewal
charge will be equal to the then-current number of total User licenses
times the license fee in effect during the prior term, unless FloorLink.net
has given you at least 30 days prior written notice of a fee increase,
which shall be effective upon renewal and thereafter. Fees for other
services will be charged on an as-quoted basis. FloorLink.net's fees are
exclusive of all taxes, levies, or duties imposed by taxing authorities,
and you shall be responsible for payment of all such taxes, levies, or
duties, excluding only United States (federal or state) taxes based
solely on FloorLink.net's income.
You agree to provide FloorLink.net with complete and accurate billing
and contact information. This information includes your legal company
name, street address, e-mail address, and name and telephone number of
an authorized billing contact and License Administrator. You agree to
update this information within 30 days of any change to it. If the contact
information you have provided is false or fraudulent, FloorLink.net reserves
the right to terminate your access to the Service in addition to any other
legal remedies.
Unless FloorLink.net in its discretion determines otherwise: (i) entities
with headquarters and a majority of users resident in the United States
will be billed in U.S. dollars and subject to U.S. payment terms and pricing
schemes ("U.S. Customers"); (ii) all other entities will be billed in U.S.
dollars, Euros or local currency and be subject to either U.S. or non-U.S.
payment terms and pricing schemes at the discretion of FloorLink.net ("Non-U.S
Customers").
If you believe your bill is incorrect, you must contact us in writing within
60 days of the invoice date of the invoice containing the amount in question
to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to FloorLink.net herein, FloorLink.net
reserves the right to suspend or terminate this Agreement and your access to
the Service if your account becomes delinquent (falls into arrears). Delinquent
invoices (accounts in arrears) are subject to interest of 1.0% per month on
any outstanding balance, or the maximum permitted by law, whichever is less,
plus all expenses of collection. You will continue to be charged for User
licenses during any period of suspension. If you or FloorLink.net initiates
termination of this Agreement, you will be obligated to pay the balance due
on your account computed in accordance with the Charges and Payment of Fees
section above. You agree that FloorLink.net may charge such unpaid fees to
your credit card or otherwise bill you for such unpaid fees.
FloorLink.net reserves the right to impose a reconnection fee in the event
you are suspended and thereafter request access to the Service. You agree
and acknowledge that FloorLink.net has no obligation to retain Customer
Data and that such Customer Data may be irretrievably deleted if your
account is 30 days or more delinquent.
11. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. For free account licenses,
the term is indefinite and may be terminated at any time in FloorLink.net's
sole discretion. For Team Edition licenses, the Initial Term is one year or
two years (as you elect during sign-up). For Multi-store and Enterprise
Edition licenses, the Initial Term will be as you elect during the online
subscription process or as otherwise mutually agreed upon, commencing on
the date you agree to pay for the Service by completing the online subscription
form or otherwise. Upon the expiration of the Initial Term, this Agreement will
automatically renew for successive renewal terms equal in duration to the Initial
Term (or one year, if the Initial Term is greater than one year) at FloorLink.net's
then current fees. Either party may terminate this Agreement or reduce the number
of licenses, effective only upon the expiration of the then current License Term,
by notifying the other party in writing at least five (5) business days prior to
the date of the invoice for the following term. In the case of free trials,
notifications provided through the Service indicating the remaining number of
days in the free trial shall constitute notice of termination. You agree and
acknowledge that FloorLink.net has no obligation to retain the Customer Data,
and may delete such Customer Data, more than 30 days after termination.
12. Termination for Cause
Any breach of your payment obligations or unauthorized use of the FloorLink.net
Technology or Service will be deemed a material breach of this Agreement.
FloorLink.net, in its sole discretion, may terminate your password, account or
use of the Service if you breach or otherwise fail to comply with this Agreement.
In addition, FloorLink.net may terminate a free account at any time in its sole
discretion. You agree and acknowledge that FloorLink.net has no obligation to
retain the Customer Data, and may delete such Customer Data, if you have materially
breached this Agreement, including but not limited to failure to pay outstanding fees,
and such breach has not been cured within 30 days of notice of such breach.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to
enter into this Agreement. FloorLink.net represents and warrants that it will
provide the Service in a manner consistent with general industry standards
reasonably applicable to the provision thereof and that the Service will perform
substantially in accordance with the online FloorLink.net help documentation under
normal use and circumstances. You represent and warrant that you have not falsely
identified yourself nor provided any false information to gain access to the Service
and that your billing information is correct.
14. Mutual Indemnification
You shall indemnify and hold FloorLink.net, its licensors and each such party's
parent organizations, subsidiaries, affiliates, officers, directors, employees,
attorneys and agents harmless from and against any and all claims, costs, damages,
losses, liabilities and expenses (including attorneys' fees and costs) arising out
of or in connection with: (i) a claim alleging that use of the Customer Data infringes
the rights of, or has caused harm to, a third party; (ii) a claim, which if true,
would constitute a violation by you of your representations and warranties; or
(iii) a claim arising from the breach by you or your Users of this Agreement,
provided in any such case that FloorLink.net (a) gives written notice of the claim
promptly to you; (b) gives you sole control of the defense and settlement of the
claim (provided that you may not settle or defend any claim unless you unconditionally
release FloorLink.net of all liability and such settlement does not affect FloorLink.net's
business or Service); (c) provides to you all available information and assistance; and
(d) has not compromised or settled such claim.
FloorLink.net shall indemnify and hold you and your parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys and agents harmless from and
against any and all claims, costs, damages, losses, liabilities and expenses (including
attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging
that the Service directly infringes a copyright, a U.S. patent issued as of the Effective
Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a
violation by FloorLink.net of its representations or warranties; or (iii) a claim arising
from breach of this Agreement by FloorLink.net; provided that you (a) promptly give written
notice of the claim to FloorLink.net; (b) give FloorLink.net sole control of the defense
and settlement of the claim (provided that FloorLink.net may not settle or defend any claim
unless it unconditionally releases you of all liability); (c) provide to FloorLink.net all
available information and assistance; and (d) have not compromised or settled such claim.
FloorLink.net shall have no indemnification obligation, and you shall indemnify FloorLink.net
pursuant to this Agreement, for claims arising from any infringement arising from the
combination of the Service with any of your products, service, hardware or business process(s).
15. Disclaimer of Warranties
FLOORLINK.NET AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE
RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS
OF THE SERVICE OR ANY CONTENT. FloorLink.net AND ITS LICENSORS DO NOT REPRESENT OR WARRANT
THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR
OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE
WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE,
(D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED
BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS
WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE
OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY
ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY
DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FLOORLINK.NET AND ITS LICENSORS.
16. Internet Delays
FLOORLINK.NET'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FLOORLINK.NET
IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, INTERRUPTION OF SERVICES,
OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS
ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT
SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY
INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR
OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE,
PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY
WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE
OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR
THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION,
REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH
DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of
implied warranties or limitation of liability for incidental,
consequential or certain other types of damages, so the exclusions
set forth above may not apply to you.
19. Local Laws and Export Control
This site provides services and uses software and technology that
may be subject to United States export controls administered by
the U.S. Department of Commerce, the United States Department of
Treasury Office of Foreign Assets Control, and other U.S. agencies
and the export control regulations of Switzerland and the European
Union. The user of this site ("User") acknowledges and agrees that
the site shall not be used, and none of the underlying information,
software, or technology may be transferred or otherwise exported or
re-exported to countries as to which the United States, Switzerland
and/or the European Union maintains an embargo (collectively,
"Embargoed Countries"), or to or by a national or resident thereof,
or any person or entity on the U.S. Department of Treasury's List
of Specially Designated Nationals or the U.S. Department of
Commerce's Table of Denial Orders (collectively, "Designated
Nationals"). The lists of Embargoed Countries and Designated
Nationals are subject to change without notice. By using the
Service, you represent and warrant that you are not located in,
under the control of, or a national or resident of an Embargoed
Country or Designated National. You agree to comply strictly with
all U.S., Swiss and European Union export laws and assume sole
responsibility for obtaining licenses to export or re-export as
may be required.
This site may use encryption technology that is subject to
licensing requirements under the U.S. Export Administration
Regulations, 15 C.F.R. Parts 730-774 and Council Regulation
(EC) No. 1334/2000
FloorLink.net and its licensors make no representation that
the Service is appropriate or available for use in other
locations. If you use the Service from outside the United
States of America, Switzerland and/or the European Union,
you are solely responsible for compliance with all applicable
laws, including without limitation export and import regulations
of other countries. Any diversion of the Content contrary to
United States, Swiss or European Union (including European Union
Member States) law is prohibited. None of the Content, nor any
information acquired through the use of the Service, is or will
be used for nuclear activities, chemical or biological weapons,
or missile projects, unless specifically authorized by the
United States government or appropriate European body for
such purposes.
20. Modification to Terms
FloorLink.net reserves the right to modify the terms and
conditions of this Agreement or its policies relating to
the Service at any time, effective upon posting of an
updated version of this Agreement on the Service. You are
responsible for regularly reviewing this Agreement. Continued
use of the Service after any such changes shall constitute
your consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by you without the prior
written approval of FloorLink.net but may be assigned without
your consent by FloorLink.net to (i) a parent or subsidiary,
(ii) an acquirer of assets, or (iii) a successor by merger.
Any purported assignment in violation of this section shall
be void. Any actual or proposed change in control of you that
results or would result in a direct competitor of FloorLink.net
directly or indirectly owning or controlling 50% or more of you
shall entitle FloorLink.net to terminate this Agreement for
cause immediately upon written notice.
22. General
With respect to U.S. Customers, this Agreement shall be governed
by California law and controlling United States federal law,
without regard to the choice or conflicts of law provisions of
any jurisdiction, and any disputes, actions, claims or causes
of action arising out of or in connection with this Agreement
or the Service shall be subject to the exclusive jurisdiction
of the state and federal courts located in Los Angeles, California.
No text or information set forth on any other purchase order,
preprinted form or document (other than an Order Form, if applicable)
shall add to or vary the terms and conditions of this Agreement.
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then such provision(s)
shall be construed, as nearly as possible, to reflect the intentions
of the invalid or unenforceable provision(s), with all other provisions
remaining in full force and effect. No joint venture, partnership,
employment, or agency relationship exists between you and FloorLink.net
as a result of this agreement or use of the Service. The failure of
FloorLink.net to enforce any right or provision in this Agreement shall
not constitute a waiver of such right or provision unless acknowledged
and agreed to by FloorLink.net in writing. This Agreement, together
with any applicable Order Form, comprises the entire agreement between
you and FloorLink.net and supersedes all prior or contemporaneous
negotiations, discussions or agreements, whether written or oral,
between the parties regarding the subject matter contained herein.
23. Definitions
As used in this Agreement and in any Order Forms now or hereafter
associated herewith: "Agreement" means these online terms of use,
any Order Forms, whether written or submitted online via the Online
Store checkout, and any materials available on the FloorLink.net
website specifically incorporated by reference herein, as such
materials, including the terms of this Agreement, may be updated
by FloorLink.net from time to time in its sole discretion; "Content"
means the audio and visual information, documents, software, products
and services contained or made available to you in the course of using
the Service; "Customer Data" means any data, information or material
provided or submitted by you to the Service in the course of using
the Service; "Effective Date" means the earlier of either the date
this Agreement is accepted by selecting the "I Accept" option
presented on the screen after this Agreement is displayed or the
date you begin using the Service; "Initial Term" means the initial
period during which you are obligated to pay for the Service equal
to the billing frequency selected by you during the subscription
process (e.g., if the billing frequency is quarterly, the Initial
Term is the first quarter); "Intellectual Property Rights" means
unpatented inventions, patent applications, patents, design rights,
copyrights, trademarks, service marks, trade names, domain name
rights, mask work rights, know-how and other trade secret rights,
and all other intellectual property rights, derivatives thereof,
and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users designated by you who
are authorized to purchase licenses online using the Online Store
checkout or by executing written Order Forms and to create User
accounts and otherwise administer your use of the Service; "License
Term(s)" means the period(s) during which a specified number of
Users are licensed to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription
for the Service and any subsequent order forms submitted online or
in written form, specifying, among other things, the number of
licenses and other services contracted for, the applicable fees,
the billing period, and other charges as agreed to between the
parties, each such Order Form to be incorporated into and to
become a part of this Agreement (in the event of any conflict
between the terms of this Agreement and the terms of any such
Order Form, the terms of this Agreement shall prevail); "User(s)"
means your employees, representatives, consultants, contractors
or agents who are authorized to use the Service and have been
supplied user identifications and passwords by you (or by
FloorLink.net at your request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain
additional information, please send an e-mail to info@FloorCoveringSoft.com
or call Floor Covering Soft at (866)928-3326 (US), (626)683-9188 (international),
or fax: (626)683-9699. Company Address: 221 E Walnut Street, Suite 250, Pasadena, CA 91101, USA.
