Terms & Policies

flocus Terms of Service Effective day 26 January 2019

This flocus Terms of Service ("Agreement") is entered into by and between the flocus entity set forth below (“flocus”), and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the flocus Services (“Service”) on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.

The "Effective Date" of this Agreement is the date of the Customer's initial access to any Service through any online provisioning, registration or order process.

As used in this Agreement, "flocus" stands for a German “Gewerbe”, headed by Tobias Hug, reachable at Burgstrasse 9, 79312 Emmendingen, Germany.

Modifications to this Agreement: From time to time, flocus may modify this Agreement. Unless otherwise specified by flocus, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. flocus will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If flocus specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.

Customer Data

1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to flocus. Subject to the terms of this Agreement, Customer hereby grants to flocus a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.

2. Storage of Customer Data. flocus does not provide an archiving service. flocus agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. flocus expressly disclaims all other obligations with respect to storage.

3. Customer Obligations.

a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to flocus that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting flocus the rights in Section 1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer will be fully responsible for any Customer Data submitted to the Service by any Person as if it was submitted by Customer.

b) No Sensitive Personal Information. Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that flocus is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. flocus will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Service. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Service.

4. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that flocus may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and flocus may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other flocus customers. For clarity, this Section 4 does not give flocus the right to identify Customer as the source of any Aggregated Anonymous Data.

Security

flocus agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, flocus will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond flocus’ control.

Third-Party Platforms

The Service may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes flocus to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that flocus has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. flocus does not guarantee that the Services will maintain integrations with any Third-Party Platform and flocus may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.

Ownership

flocus Technology. This is a subscription agreement for access to and use of the Service. Customer acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that flocus or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “flocus Technology"). Except as expressly set forth in this Agreement, no rights in any flocus Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an online, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for the flocus Apps in the format provided by flocus.

Feedback. Customers may submit Feedback to flocus. flocus may freely use or exploit Feedback in connection with any of its products or services.

Premium Service and Payments

You may choose our free Service or paid Service (“Amazing”, including both paid packages “Standard” and “Business”) depending on your need. We do not guarantee when, if ever, Amazing features will be available in the free Service. You can upgrade from free Service to Amazing at any time by following instructions on our pricing page (“Pricing”).

If you choose not to upgrade to Amazing, features available to you will be limited to free Service. You will be charged with the amount shown on Pricing before you can access Amazing. All prices shown on Pricing are inclusive of any applicable sales taxes, levies, value-added taxes, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies, or duties.

Service Modification and Termination

flocus may add or remove functionalities or features in the normal course of improving, changing, and/or updating the Service. We may also suspend or stop our Service with at least thirty (30) days notice prior to the complete shutdown of our Service.

You can choose to stop using our Service at will. We may also stop providing Service to you, or add or create new limitations to our Service at any time as detailed in the Terms.

Limited Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS AVAILABLE “AS IS”. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

WHEN PERMITTED BY LAW, FLOCUS AND ITS SERVICE PARTNERS, LICENSORS, EMPLOYEES, AGENTS WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES.

YOUR USE AND/OR PURCHASE OF SERVICE ARE ALL AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS.

FLOCUS DOES NOT WARRANT THAT:

• THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS AT ALL TIMES;
• THE SERVICE WILL BE ERROR-FREE AND ALL ERRORS IN THE SERVICE WILL BE CORRECTED;
• THE SERVICE WILL BE UNINTERRUPTED.

ALL CONTENT DOWNLOADED, UPLOADED AND/OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER EQUIPMENT OR DEVICES, INCLUDING BUT NOT LIMITED TO, LAPTOP COMPUTERS, DESKTOP COMPUTERS, TABLETS AND SMARTPHONES, OR ANY DATA LOSS RESULTING FROM DOWNLOAD OR USE OF ANY SUCH ABOVE MENTIONED MATERIAL.

Limitation of Remedies and Damages

Consequential Damages Waiver. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

Liability Cap. FLOCUS’ AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO FLOCUS DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.