Anyone using or accessing the FloPlan Service (“Service”), or any part thereof, agrees to the following Terms of Use (also referred to herein as the “Agreement”) between you and Financial Business Services, Inc. (“FBS”). If you do not agree, you cannot use the Service. If you are entering into this Agreement on behalf of a corporation, partnership, company or any other entity, you hereby represent and warrant to FBS that you are authorized to enter into this Agreement on behalf of and bind the entity to the terms and conditions contained herein, and “you,” “your,” and “user” also refers collectively to you, the individual, and to the entity you represent.
- How The Service Works.
Subject to the terms and conditions of this Agreement: The FloPlan Service is software and services provided by FBS to real estate brokers, agents, appraisers, and others who are members (each an “MLS Member”) of real estate multiple listing services (“MLSs”), to create floor plans for properties by using the FloPlan mobile phone application to scan the property with the video camera and other sensors on the phone (“Scan”). MLS Members may Scan the property themselves or invite others (e.g., someone else on their team, a staff or independent professional photographer, the property owner, etc., each an “Invitee”) to use the FloPlan app to Scan the property. The Scan is then used by the Service to create a floor plan for the property (“Floor Plan”). Together, the Scans and Floor Plans are “Digital Assets” of the Service. The MLS Member may link the Floor Plan to a listing in one or more MLS systems for display to other MLS Members, and for distribution through the MLS to third parties according to MLS rules and licensing agreements for the Floor Plans.
- Licenses and Restrictions. Subject to all other terms and conditions in this Agreement, you will receive the following license rights:
- Use of the Service. You are granted a limited, non-exclusive, non-transferable, non-sublicensable license to use the Service to Scan properties and create Floor Plans of those properties, provided such use complies with applicable laws, MLS rules, policies, and agreements, and solely as allowed by these Terms of Use. Invitees may use the Service and agree that they are doing so on behalf of the MLS Member or Participating Broker who invited them to use the Service.
- License to and Use of the Floor Plans. Upon payment (either by credit card or other method approved by FBS) of the fees specified in the Service for creating a Floor Plan, the MLS Member and Participating Broker of the MLS Member are granted a limited, non-exclusive, non-transferrable, non-sublicensable, irrevocable, royalty-free, perpetual license to copy, display, distribute, create derivative works, and use the Floor Plan in any way to provide service to their clients and customers, and to link the Floor Plan to your listing in one or more MLSs to which you are an active and authorized member in good standing.
- License Restrictions. This is a license and subscription to access and use the Service subject to the terms set forth in these Terms of Use and not a transfer of title to the Service or to any Digital Assets. FBS and its licensors retain ownership of all copies of the Service including, without limitation, the Intellectual Property and Digital Assets related thereto. You are granted no implied licenses to any other Intellectual Property rights other than as specifically granted herein. You acknowledge that the Service may contain trade secrets of FBS, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided under these Terms of Use, you shall have no right, and you specifically agree not to: (i) make copies of or distribute the Service or any part thereof; (ii) post, show, display, or perform the Service; (iii) transfer, assign or sublicense your license or subscription rights to the Service to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (iv) make error corrections to, or otherwise modify or adapt, the Service or to create derivative works based upon the Service, or permit third parties to do the same; (v) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the software elements of the Service to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (vi) use or permit the Service to be used or to perform services for third parties, whether on a training, service bureau, or time sharing basis or otherwise, without the express written authorization of FBS; (vii) disclose, provide, or otherwise make available trade secrets contained within the Service in any form, to any third party without the prior written consent of FBS; or (viii) use the Service to develop any software application, training materials, or similar products or services. You acknowledge and agree that FBS and its licensors reserve the right to remotely prevent access to and/or use of the Service for any reason and solely in their discretion, including without limitation in the event that (i) FBS or its licensors becomes aware, from you or otherwise, of unauthorized access or use of the Service by any third party using any username, password, or other login credentials of you, or (ii) your violation of any term or condition of these Terms of Use. All rights not expressly granted in these Terms of Use are reserved by FBS. These terms do not grant you the right to use any FBS or FloPlan branding or logos. You agree not to remove, obscure, or alter any legal notices displayed in or along with the Service.
- Intellectual Property Definition. As used in this Agreement, “Intellectual Property” shall mean all intellectual property and industrial property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world, whether registered or unregistered, including without limitation any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing; (b) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, publicity, moral and paternity rights, and all registrations, applications for registration and renewals of such copyrights; (c) inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential information and all rights therein; (d) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re- examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); and (e) software and firmware, including data files, source code, object code, scripts, mark-up language, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation.
- Ownership of Service and Digital Assets. You agree FBS and its licensors own all right, title, and interest in and to the Service and all Intellectual Property in and to the Service. You further agree that FBS owns, and to the extent it does not own, you hereby assign all right, title, and interest in and to the Digital Assets as well as all Intellectual Property in and to the Digital Assets. FBS agrees that it shall not use, display, or distribute in any way the Floor Plans linked to your listings other than as directed by you and as allowed by this Agreement. FBS also is entitled internally, without distribution or display outside of FBS or its technology partners, to use the Floor Plans, Scans, and other data provided or produced by the Service to improve the Service, including, without limitation, to improve machine-learning models and the user experience.
- Credentials. To access the FlōPlan Service, you must identify yourself by entering credentials presented uniquely to you and not shared with anyone else. You represent and warrant that any user credentials or other information you present or use to access the Service will be true, current, and accurate, and you will not access the Service with false or inaccurate credentials. You will not share or lend your credentials to any third party. You agree to take reasonable precautions to prevent others from copying or using your credentials. If FBS finds someone else using your credentials, FBS may suspend your license and take reasonable action to protect our software.
- Feedback. You may provide feedback to FBS with respect to the Service. Notwithstanding any provision of these Terms of Use to the contrary, FBS and its licensors may use such feedback for any purpose without obligation of any kind. You hereby assign all right, title, and interest, including all intellectual property rights in and to all feedback without restriction or further compensation from FBS.
- Required Devices and Software. In order to use the Service, you must provide all computer, tablet, smartphone, or any other electronic devices, equipment and software necessary to use Service that are not a part of the Service, including, but not limited to, a suitably fast Internet connection and a device that is in working order running an operating system and web browser compatible with the Service (see https://floplan.io/supported-browsers-and-devices) and that is suitable for use in connection with the Service. You are responsible for ensuring that your devices, equipment and/or software do not disturb or interfere with FBS’s operations or the operations of other users of the Service. If any modification to Service requires changes in your devices, Internet connection, equipment or software, you must effect these changes at your own expense.
- Proprietary Notices. You agree to maintain and reproduce all Intellectual Property and other proprietary notices on all copies, in any form, of any Floor Plan, in the same form and manner that such copyright and other proprietary notices are included on the Service and the Floor Plan, whether they are FBS notices or those of third parties including without limitation any FBS licensor.
- Confidential Information. The Service, including, but not limited to, source and object code, logic and structure, database structure, and any and all copies of the foregoing, regardless of the form or media in or on which any of them may exist (all together, the “Confidential Information”) constitute valuable trade secrets, are the Intellectual Property and confidential information of FBS and any other of its licensor(s), and are protected by copyright and Intellectual Property laws, international treaty provisions, and applicable laws of the country in which such Confidential Information is being used. Confidential Information additionally includes non-public information disclosed by FBS if it is clearly and conspicuously marked as “confidential” or with a similar designation at time of disclosure or non-public information disclosed by FBS if, by its nature, would generally be considered by FBS to be confidential. Confidential Information shall not include information which: (i) is or becomes public knowledge through no fault of you; (ii) was in your possession before receipt from FBS; (iii) is rightfully received by you from a third party without any duty of confidentiality; (iv) is disclosed to a third party by FBS without a duty of confidentiality on the third party; (v) is independently developed by you; or (vi) is disclosed with the prior written approval FBS. Disclosures of Confidential Information will be restricted to those individuals who are participating in the performance of this Agreement and who need to know such Confidential Information for purposes of receiving and/or using the Confidential Information in a way expressly permitted by this Agreement, and Confidential Information of FBS may not be used for any purpose except as authorized under this Agreement. Confidential Information of FBS may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after you have given FBS written notice, if legally allowed, of such court order or other legal process promptly and the opportunity for FBS to seek a protective order or confidential treatment of such Confidential Information, at FBS’s expense, with reasonable cooperation by you. FBS shall retain all ownership of its Confidential Information including without limitation all Intellectual Property rights in that Confidential Information. Subject to the licenses granted in this Agreement, you agree, both during the term of the Agreement and after the termination of the Agreement to hold FBS Confidential Information in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as you use to protect your own Confidential Information of a like nature but in no event with less than reasonable care. You shall be responsible and liable under the terms of this Agreement for any violation of the confidentiality requirements of this Section committed by your employees, agents, representatives, or independent contractors.
- Additional Representations and Warranties From You. You represent and warrant that (a) you are the owner or an authorized user of the Device on which the Service are to be accessed and any information or content of any type provided by you or your Invitees in conjunction with the Service; (b) you and your Invitees shall use the Service only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same; and (c) to the best of your current, actual knowledge that you and your Invitees have all the necessary rights and licenses to Scan a property, provide the Scan to FBS for processing under this Agreement, and to grant FBS its rights in and to the Digital Assets.
- Indemnities. You will, to the fullest extent permitted by law, indemnify, defend, and hold FBS and its licensors, and their respective officers, directors, employees, agents, representatives, subsidiaries, parents, affiliates, vendors, resellers, independent contractors, owners, successors and permitted assigns (the “FBS Indemnified Parties”) harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the attorneys’ fees and costs of enforcing any right to indemnification under these Terms of Use, and any attorneys’ fees and cost of pursuing any insurance providers (collectively, “Losses”), incurred by FBS Indemnified Parties or awarded against FBS Indemnified Parties relating to, arising out of, or resulting from: (1) any breach of this Agreement by you, including without limitation any use of Services or the Floor Plans other than as expressly authorized in this Agreement; or (2) any claims brought by third parties arising out of your use of the Services, including without limitation any Floor Plan or information accessed from the Services. You agree that the Indemnified Parties will have no liability in connection with any of the above. You agree that you shall, in all instances, engage in best efforts to mitigate any Losses, whether such actions include immediately notifying FBS of any issue or taking such other action as is reasonable and lawful.
- Termination and Suspension. These Terms of Use shall be effective as of your acceptance and shall continue in effect until terminated. FBS may, at its election and in its sole discretion, suspend or terminate these Terms of Use and your license, access, or use of all or any portion of the Service at will and with or without cause. FBS is further entitled to obtain injunctive relief if your use of the Service is in violation of any restrictions set forth in these Terms of Use, including without limitation any license restrictions. Upon termination of these Terms of Use, your right and license to access and use the Service shall terminate while all other terms will survive such termination.
- Dispute Resolution. The laws of the State of North Dakota shall apply to these Terms of Use, without regard to any conflict of laws provisions. The 1980 United Nations Convention on Contracts for the International Sale of Goods, the United Nations Convention on the Limitation Period in the International Sale of Goods, and the Uniform Computer Information Transactions Act, and any implementations thereof in various jurisdictions and any subsequent revisions thereto, shall not apply to these Terms of Use. Any controversy or claim arising out of or relating to these Terms of Use or your use of the Service (a “Dispute”) shall be settled by arbitration under the rules provided by the American Arbitration Association (AAA), and you hereby waive any right you may otherwise have to a jury trial. A single arbitrator shall preside over any arbitration, and such arbitrator shall, in his or her sole discretion, determine the arbitrability of any alleged Dispute. Any arbitration shall be conducted in Fargo, North Dakota. To the fullest extent permitted by applicable law, no arbitration under these Terms of use will be joined to an arbitration involving any other party subject to these Terms of Use, either through class arbitration proceedings or otherwise. Judgment on an award rendered by an arbitrator may be entered in any state or federal court within or without the State of North Dakota. Notwithstanding the foregoing, in lieu of or addition to any other remedies available to FBS, FBS may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of FBS’s or any third party’s intellectual property or proprietary rights, or any issues related to the security of the Service. You hereby irrevocably consent to the exclusive jurisdiction and venue of the State and Federal courts of the State of North Dakota with respect to any such injunctive or other relief. You further acknowledge that FBS’s rights in its and its licensors’ intellectual property are of a special, unique, extraordinary character, giving those rights peculiar value, the unauthorized use, disclosure, or loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages. Every provision of these Terms of Use will be construed, to the extent possible, so as to be valid and enforceable. If any provision of these Terms of Use so construed is held by a court of competent jurisdiction or an arbitrator to be invalid, illegal or otherwise unenforceable, such provision will be modified by that court of competent jurisdiction or arbitrator to be valid and enforceable while maintaining as close as possible the intent of the parties as indicated by the wording of these Terms of Use or, if the provision cannot be so modified, deemed severed from these Terms of Use, and all other provisions will remain in full force and effect.
- Warranty Disclaimer. YOU ACCEPT THE SERVICE AND ALL FLOOR PLANS “AS IS” AND WITHOUT WARRANTY OF ANY KIND FROM FBS. FBS MAKES NO REPRESENTATIONS ABOUT WHETHER THE SERVICE OR THE FLOOR PLANS WILL MEET YOUR SPECIFIC NEEDS AND FBS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE SERVICE AND THE FLOOR PLANS.
- Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL FBS OR ITS LICENSORS BE LIABLE TO YOU FOR ANY INDIRECT DAMAGES OF ANY TYPE, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS, LOST DATA, PROPERTY DAMAGE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SERVICE, THE FLOOR PLANS, OR THE USE THEREOF, EVEN IF FBS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF FBS AND ITS LICENSORS UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SERVICE, AND THE FLOOR PLANS WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE GREATER OF THE MINIMUM AMOUNT ALLOWED BY LAW OR THE AMOUNT YOU PAID TO FBS TO USE THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO THE CLAIM.
- App Store Disclaimer. These Terms of Use are between you and FBS, not any other entity such as without limitation Google, Inc., Apple, Inc., or Amazon.com, Inc., or any other third party through which you obtain any mobile application or the Service (collectively and individually “Third Party App Stores”), and in no event shall any Third Party App Store be obligated to provide maintenance or support of the Service, provide any warranty granted in these Terms of Use, or provide any indemnity for Intellectual Property violations of by the Service. You are bound by any applicable terms set forth in relation to any such Third Party App Stores. As to an app downloaded from Apple’s app store, the license herein to the Service is only to use the app on the Apple-branded products that you own or control. In the event of any failure of the Service to comply with any warranty as set forth herein, where that Service was purchased through Apple, Inc., you may contact Apple, Inc. for a refund of the purchase price paid through Apple, Inc. You must contact FBS and not any Third Party App Stores, regarding any product liability claims, claims that the Service fail to conform to any applicable legal or regulatory requirement, or any claims arising under any consumer protection, privacy, or similar legislation. Third Party App Stores and their subsidiaries shall be third party beneficiaries to these Terms of Use and shall have the right to enforce these Terms of Use against you.
- Miscellaneous. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FBS as a result of this agreement or use of the Service or Floor Plans. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. This Agreement constitutes the entire agreement among the parties relating to this subject matter and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written between the You and FBS with respect to the Service and Digital Assets. Notwithstanding the foregoing, any additional terms and conditions within the Services will govern the items to which they pertain. This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current. FBS reserves the right to correct any errors, inaccuracies or omissions in this Agreement at any time without prior notice. FBS does not, however, guarantee that any errors, inaccuracies or omissions will be corrected. The failure by FBS at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by FBS not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed. FBS RESERVES THE RIGHT, FROM TIME TO TIME, WITH OR WITHOUT NOTICE TO YOU, TO MAKE CHANGES TO THIS AGREEMENT IN FBS’S SOLE DISCRETION. CONTINUED USE OF ANY PART OF THE SERVICE OR ANY FLOOR PLAN CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO THE CHANGES, YOUR SOLE REMEDY IS TO TERMINATE THIS AGREEMENT AND CEASE ACCESSING AND USING THE SERVICE AND ALL FLOOR PLANS. THE MOST CURRENT VERSION OF THIS AGREEMENT, WHICH SUPERSEDES ALL PREVIOUS VERSIONS, CAN BE REVIEWED AT THE LINK TO THE SERVICES TERMS AND CONDITIONS LOCATED WITHIN THE FLOPLAN MOBILE APPLICATION.