Terms of Service and End User License Agreement
IMPORTANT: PLEASE READ THIS TERMS OF SERVICE AND END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE FAMILOOP SOFTWARE AND ON-LINE SERVICE (REFERENCED HEREIN AS THE “SOFTWARE” AND/OR “SERVICE” AS APPLICABLE). AMUSTWARE, INC. DOING BUSINESS AS FAMILOOP (“FAMILOOP” AND ALSO REFERRED TO HEREIN AS THE “LICENSOR”) IS WILLING TO LICENSE THE SOFTWARE AND/OR PROVIDE THE SERVICES TO YOU AS AN INDIVIDUAL OR LEGAL ENTITY (REFERENCED HEREIN AS “LICENSEE” OR “YOU”) THAT WILL BE UTILIZING THE SOFTWARE AND SERVICE ONLY ON THE CONDITION THAT YOU ACCEPT AND ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT APPLIES TO ANY UPDATES OR SUPPORT SERVICES FOR THE SOFTWARE AND/OR SERVICE PROVIDED TO YOU BY FAMILOOP, UNLESS OTHER TERMS SPECIFICALLY COVER THOSE ITEMS. BEFORE INSTALLING AND USING THE SOFTWARE OR UTILIZING THE SERVICE YOU SHOULD CAREFULLY READ THIS AGREEMENT AND YOU MUST SELECT “I ACCEPT” OR “I AGREE” IF YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT. OTHERWISE, DESELECT “I ACCEPT.” YOU UNDERSTAND AND ACKNOWLEDGE THAT SELECTING “I ACCEPT” OR OTHERWISE DOWNLOADING, INSTALLING AND OR USING THE SOFTWARE AND SERVICE ESTABLISHES A LEGAL, ENFORCEABLE AND BINDING AGREEMENT BETWEEN YOU AS THE PERSON OR ENTITY LICENSING THE SOFTWARE AND UTILIZING THE SERVICE AND FAMILOOP. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST CEASE USING THE SOFTWARE AND SERVICE, AND IMMEDIATELY DELETE ANY SOFTWARE AND ASSOCIATED FILES.
1. Software License Grant (On Premises Installation). Subject to the terms and conditions of this Agreement, upon purchase of a license to the Software for installation at Licensee’s location and/or for hosted use of Software, Licensor grants and Licensee accepts a nonexclusive, nontransferable, non-assignable license to use Software in accordance with its documentation, only for your own internal use and solely for the specific number of devices. By virtue of licensing Software and registering license with Familoop, you are entitled to: (1) updates which are released on Familoop’s sole discretion, and (2) other electronic services that Familoop may make generally available to its customers, such as an electronically available base of knowledge (“Knowledge Base”) to assist in answering general questions about the Software.
In case of use installable version of Software You may make only one copy of the Software for backup and archival purposes, only in machine readable form, provided that such archival copy is only used for archival purposes and never in a production environment, and is marked with all notices provided by Licensor.
2. Right to Access Software (Subscription Service/Hosted Use of Software). Subject to the terms and conditions of this Agreement, Familoop grants you a non-exclusive, non-transferable, non-sublicensable license to use the Software as part of the hosted Service on a subscription basis, for your internal business purposes only, for a number of devices covered under your license. The Service is an internet control product that may consist of client software installed on your server, personal computer, laptop, mobile device that interacts with Familoop’s or its third party providers’ servers and/or interacts with Familoop’s or its third party providers’ servers through third party applications. The client software on your computer connects to a server network infrastructure that is deployed via the Internet and operated as a managed service by Familoop and other service providers. All or portions of the Service provided hereunder may be provided by a third-party provider, including without limitation, credit card processing. The “Service Period” shall begin on the date the Service is activated, and shall continue for the period of time set forth in the applicable order accepted by Familoop.
Familoop will provide you with a free subscription period for hosted access to the Software, pursuant to the terms of this Agreement. If at the end of the free subscription period you have not elected to purchase a subscription license to the Software, your access to the hosted Software shall be terminated by Familoop.
2.1. Hosting of the Software. For the term of, and in accordance with the terms and conditions of, this Agreement, Familoop will, itself or through third parties, implement and maintain facilities, equipment, and programming, collectively making up a host data center, as necessary to provide you access to the Software via the Internet. You will be responsible for providing your own Internet access and computer equipment needed to access the Service. Service level commitments for the hosted Service are set forth in this Agreement.
2.2 Transmission of Data. You understand that the technical processing and transmission of electronic communications is fundamentally necessary to your use of the Service. You expressly consent to Familoop’s interception and storage of electronic communications and/or Your Data (as hereafter defined), and you acknowledge and understand that your electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Familoop. You acknowledge and understand that changes to your electronic communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices.
2.4 Your Data. You are the owner of all data input provided by you and all your output (collectively “Your Data”). Thereafter, all of Your Data retained by Familoop in the system database files shall be made available to you only upon your remittance to Familoop of a reasonable fee to cover the servicing and handling of Your Data.
Notwithstanding the foregoing, you acknowledge and agree that it is Familoop’s practice to make backup copies of the Your Data. You acknowledge and agree that Familoop may store and maintain Your Data for such period of time as it deems necessary. Subject to the terms and conditions of this Agreement, you grant Familoop a limited, non-exclusive, non-transferable license to copy, store, record, transmit, display, view, print, or otherwise use Your Data to the extent necessary to perform its services pursuant to this Agreement. You agree that the license to store and maintain Your Data shall survive the termination of this Agreement.
You agree to:
a. be solely responsible for the results obtained from use of the Familoop Services and Software;
b. be solely responsible for correcting input errors and data corruption problems; and
c. be solely responsible for the content of any data file, the selection and implementation of controls on access to Your Data and the use and security of Your Data.
2.5 Access Restrictions. A current Familoop account is required to accept and use the Service. You agree to provide accurate and complete information when you register for the Service and you agree to keep such information accurate and complete during the entire time that you use the Service. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password. You may access the Service only through the interfaces and protocols provided or authorized by Familoop. You agree that you will not access the Service through unauthorized means, such as unlicensed software clients. If you lose your password or the encryption key for your Familoop account, you may not be able to access your Data. You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. You are solely responsible for your (and your employees, consultants and affiliates) conduct, use of the Services and Data under the Familoop account.
3. Restrictions; Ownership. The Software and its structure, organization, source code, and documentation contain valuable trade secrets of Familoop and its licensors, and accordingly you agree not to (and agree not to allow your affiliates, employees, agents or third parties to) (1) sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party, (2) modify, adapt, translate, or prepare derivative works from the Software or Service, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service, (4) decrypt data or extract portions of the Software's files for use in other applications, (5) remove, obscure, or alter Familoop’s or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service, (6) use or permit the Software or Service to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Familoop, or (7) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software or Service. You are responsible and liable for the actions of its affiliates, employees, and agents in violation of any term of this Agreement. In addition, certain third party code may be provided with the Software and/or Service, and any use of such third party code is subject to any additional terms and conditions provided in connection therewith. You shall maintain the Software in confidence and prevent disclosure of Software and Service using at least the same degree of care you use for your own similar proprietary information, but in no event less than a reasonable degree of care.
Notwithstanding any references to “purchase”, the Software and Service are licensed and not sold pursuant to this Agreement. This Agreement confers a limited license to the Software and Service and does not constitute a transfer of title to or sale of all or a portion of the Software or Service, and Familoop and/or its licensors/supplier retains ownership of all copies of the Software (including any accompanying features and services). You acknowledge that Familoop or third parties own all right, title and interest in and to the Software and Service, portions thereof, or software or content provided through or in conjunction with the Software or Service, including without limitation all intellectual property rights. Except for the license granted in this Section, all rights in and to the Software and Service are reserved, and no implied licenses are granted by Familoop.
4. Activation. In order to use the Software or the Service, Licensee must complete the designated activation process within the Service or through a link provided within the Software.
5. Termination. You may terminate this Agreement at any time by destroying all Software and closing your account (as applicable) by following the instructions found at www.familoop.com. This Agreement automatically terminates if you fail to comply with its terms and conditions. You agree that, upon such termination, you will destroy and permanently erase all copies of the Software and that your access rights to the Service will immediately terminate. The terms of the Sections entitled Consent to Collect Non-Personal Information, Restrictions; Ownership, Disclaimer of Warranties, Limitation of Liability, and Miscellaneous will survive expiration or termination. You also agree that Familoop may retain your personal information and related account information for a reasonable time after your license has been terminated. No refunds will be given for early termination. Fees are non-cancellable and non-refundable.
6. Support. If you are currently enrolled in a support and maintenance program with Familoop, support and maintenance is provided pursuant to Familoop’s support and maintenance policy found in your license documents. Familoop shall make available to you support and maintenance consistent with the level of such service purchased. Support policies are subject to change without prior notice. Proof of legal ownership and/or registration is required to obtain support. Familoop provides no assurance that any specific errors or discrepancies in the Software will be corrected.
Exclusion. We reserve the right to exclude any User from the Platform and Services without prior warning should he/she breaches these Terms.
i. User Conduct and Responsibility; Compliance with Applicable laws. The Software and Service are made available to Licensee for Licensee’s internal use (including the transmission of Data stored through the Service) in compliance with all applicable laws, rules and regulations (including local, state, national and international laws and regulations, not limited to United States export laws or those of other territories or jurisdictions) and must not infringe or violate third party rights. Licensee may not use the Software or Service for non-internal use, including but not limited to selling or distributing the Software and/or Service to any third party or utilizing the Software and Service to provide service to a third party. Any unauthorized use of any Service is a violation of this Agreement and certain federal and state laws. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.
ii. Fair Use Policy. FAMILOOP SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE SOFTWARE OR SERVICE TO USERS WHO ARE DEEMED BY FAMILOOP TO BE USING THE SOFTWARE OR SERVICE IN A MANNER NOT REASONABLY INTENDED BY FAMILOOP OR IN VIOLATION OF LAW OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER'S FAMILOOP ACCOUNT WITH FAMILOOP AND THE LICENSE TO USE THE SOFTWARE OR SERVICE.
iii. Consent to Collect Non-Personal Information. The Software and Service may collect certain non-personally identifiable information that resides on your computer, including, without limitation, performance metrics relating to the Software, and configuration settings. This information collected will be sent to Familoop and may be used by Familoop or its third party service providers without restriction. The collected information is necessary for the purpose of delivering the functionality of the Software and Service. When you use the Service, you agree that we and our third party service providers may copy and store your data as part of the Service. You understand that electing to access your data from a third party computer may cause the contents of the data to become accessible to individuals other than you and that you accept this risk. You further acknowledge that depending upon the Software or Service you use or the features of the Software or Service you use that accessing your data from any Internet enabled computer many not be possible. In addition, any Data that you transmit or store through the Service may be transferred to a Familoop group in the United States or other countries that may have less data protection laws than the region in which you are situated (including outside the European Economic Area).
iv. Communication, Connections, Service Availability. You are solely responsible for acquiring and maintaining the Internet or telecommunications services and devices required to access and/or use the Service. The Service is provided “as is” and “as available” and Familoop shall not be liable for any downtime of the Service due to reasonable scheduled maintenance, maintenance for critical issues or forces beyond the reasonable control of Familoop. The Software and Service is designed to serve the needs of particular types of users, i.e. individual consumers or business accounts. If you have purchased a Service that is inappropriate for your actual usage, Familoop may require you to switch to an appropriate Service. Familoop may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of the Software or Service and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of the Service may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Familoop’ customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or Service that will permit you to continue to use the Service. Familoop may block your access to your data and/or terminate your use of the Software or Service if Familoop reasonably believes that your continued use of the Software or Service may damage, disable, overburden, or impair our servers or networks.
v. Privacy and Data Protection. Familoop assumes no responsibility for the deletion of Data, loss of data or the failure to store Data. Familoop will not decrypt your files unless i) it reasonably believes that it must do so to troubleshoot problems with the Service or ii) it reasonably believes it must do so in order to comply with any law, subpoena, warrant, order, or regulation. Familoop may also provide access to your data to government authorities if Familoop suspects or believes that the data contain a prohibited data or that the data are being used for illegal purposes. You acknowledge that Familoop, its third party service providers or Familoop affiliates may use servers and other equipment to provide the Software or Service that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your data as provided by applicable local law. Familoop has no obligation to monitor the use of the Service and/or Data transmitted or stored through the Service. To the maximum extent possible under applicable law and notwithstanding the provisions of this Agreement, Familoop reserves the right at all times to monitor, review, retain and/or disclose any Data or other information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to investigate any suspected breach of these Terms and Conditions. You agree to indemnify, defend, and hold harmless Familoop, its officers, directors, employees and its suppliers from any and all loss, cost, liability, and expense arising from or related to your Data, your use of the Service, or your violation of these terms. You agree to reimburse Familoop for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Familoop.
vi. Changes to the Service and Terms and Conditions. Familoop reserves the right at any time to modify, suspend, or discontinue providing the Service or any part thereof in its sole discretion with or without notice. However, Familoop will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of the Service either by sending an email to the email address you provide with your registration or by a posting on www.familoop.com. However, in no event will Familoop be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice. From time to time, Familoop may issue new releases, revisions, or enhancements to the Software or Service available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed, downloaded, and installed only to the extent that you hold a valid license to use the Software or Service being updated or upgraded, and you may use them only in accordance with Familoop’ then-current Terms and Conditions of Use and any additional license terms that may accompany them. Familoop reserves the right at any time to modify this Agreement in its sole discretion, without liability to you. This Agreement, as amended, will be effective upon acceptance of registration for new users and effective for all existing users fifteen (15) days after the posting of any amended terms on the familoop.com website. You agree to be bound by this Agreement, as modified. If you do not agree to any changes to this Agreement, you must terminate your account immediately, which shall be your sole and exclusive remedy.
10. Disclaimer of Warranties. THE SOFTWARE AND SERVICE AND ANY THIRD PARTY SOFTWARE AND SERVICES ARE PROVIDED \"AS IS\", WITH NO WARRANTIES WHATSOEVER. FAMILOOP AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES. FAMILOOP DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICE WILL MEET YOUR REQUIREMENTS THAT THE OPERATION OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED. FAMILOOP DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. FAMILOOP DOES NOT REPRESENT OR WARRANT THAT USERS WILL BE ABLE TO ACCESS OR USE THE SOFTWARE OR SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT FAMILOOP WILL HAVE ADEQUATE CAPACITY FOR ANY USER\'S REQUIREMENTS. NO ORAL OR WRITTEN STATEMENT, INFORMATION OR ADVICE GIVEN BY FAMILOOP, OR ITS RESPECTIVE EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL CREATE ANY WARRANTIES. YOU UNDERSTAND AND AGREE THAT YOUR DOWNLOAD AND/OR USE OF THE SOFTWARE AND SERVICE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE AND SERVICES. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
11. Liability Limitations. UNDER NO CIRCUMSTANCES SHALL FAMILOOP, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF FAMILOOP, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO FAMILOOP FOR THE SOFTWARE OR SERVICE. IF THE SOFTWARE AND SERVICE ARE PROVIDED WITHOUT CHARGE, THEN FAMILOOP AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER IN EXCESS OF $100.00. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, TO USE OR RETRIEVE ANY BACKUP DATA, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEE AGREES THAT LICENSOR WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE. LICENSOR SHALL NOT BE LIABLE FOR DAMAGES TO LICENSEE’S HARDWARE AND SOFTWARE, LOSS, DESTRUCTION OR CORRUPTION OF LICENSEE’S DATA, LOSS OF REVENUE OF PROFITS AS A RESULT OF LICENSEE’S USE OF THE SOFTWARE.
12. Licensee Indemnity. You agree to indemnify and defend Familoop, and hold it harmless from all costs, including attorney’s fees, arising from any claim that may be made against Familoop by any third party as a direct or indirect result of any use by your of the Software and or Service.
13. Export Restriction. You will not remove or export from the United States or the country originally shipped to by Familoop (or re-export from anywhere) any part of the Software or any direct product thereof except in compliance with applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.
14. Government End Users. This Agreement applies to all Software and Service acquired directly or indirectly by or on behalf of the United States Government. The Software and Service are commercial products, provided on the open market at market prices, and was developed entirely at private expense and without the use of any U.S. Government funds. If the Software or Service is supplied to the Department of Defense, the U.S. Government acquires only the license rights customarily provided to the public and specified in this Agreement. If the Software or Service is supplied to any unit or agency of the U.S. Government other than the Department of Defense, the license to the U.S. Government is granted only with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c) of the Commercial Computer Software Restricted Rights clause of FAR 52.227-19.