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Terms of Use

FluidSurveys Terms of Use

Posted: June 27th, 2014

Effective Date: July 14th, 2014

If you have any questions/comments please send us an email: info@fluidware.com.

This website is owned and operated by Fluidware Corp. (“we” or “Fluidware”). We provide and maintain an Internet Web site (the “Site”) for the benefit of users of our services (“you” or “User”). On our Site we provide hosted tools and processes to allow you to create individualized surveys, obtain survey results, use related services, and, if subscribed, applications using text messaging via a mobile telephone number (SMS) (collectively and as applicable, “Services”).

The Services and use of the Site are provided to you subject to the terms and conditions set forth in these Terms of Use (“Terms of Use” or “Agreement”) and our Privacy Policy, and any other rules and policies set forth on this Site. The terms and conditions below and any other rules or policies set forth on this Site comprise the entire agreement between you and Fluidware and supersede all prior agreements between us.

1. Acknowledgement and Acceptance

PLEASE READ THE FOLLOWING TERMS OF THIS AGREEMENT CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS, YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND IN OUR PRIVACY POLICY. YOU HEREBY ACKNOWLEDGE THAT YOU ARE 18 YEARS OF AGE OR OLDER.

2. User Responsibilities

These Terms of Use give you important obligations. You agree to the following responsibilities:

◦Compliance with our Anti-Spam policy. Please see Section 7 below.

◦Lawful use of the Services only. Please see Section 8 below.

◦Creation and maintenance of all content in the account including but not limited to survey content, email/SMS content, address books and current billing and contact information.

◦Email/mobile phone number list and Address Book maintenance including opt-out contact information and immediate removal of opt-outs and bounces from email/mobile phone number lists and the address book.

◦Payment of all agreed subscription fees.

◦Full responsibility for all activity associated with your use of our Site and Services.

◦Compliance with all other obligations set forth in these Terms of Use.

 

We reserve the right to deactivate your account(s) as we deem appropriate or necessary, without notice. You enter and use the Site and the Services at your own risk. Fluidware is not responsible for your activities, surveys, content, results or questions from respondents, other data, or any other matter concerning your use of the Site or the Services. We recommend that you keep track of your survey results and other data in your own personal records, as we reserve the right to discontinue your account(s) or terminate the Services at any time. We are not responsible for the deletion of any data that is in or has been added to your account(s). If a User account remains inactive for a period of 18 months, we may deactivate the account.

3. Modification to Services Provided; Terms of Use

You acknowledge and agree that we may, with or without notice, modify or terminate all or any portion of the Services and/or the Site. Modifications of the Service and/or the Site may include, without limitation, changes in the maximum allowable memory space, number of survey respondents, number of surveys, and number of survey questions that may be created, saved, sent or used through the Site (collectively, “Thresholds”). We will notify you of any modifications or terminations we make by posting a notice on our Site, or, if we choose, by sending you an email. If you do not accept the modifications or terminations of the Services and/or the Site, you must terminate your subscription or other use of the Site and the Services, and these Terms of Use will automatically terminate by the effective date of the modifications or termination.  The effective date of the modifications or terminations of the Services and/or the Site will be the date that the notice is posted (or emailed to you) or the effective date as set out in the notice.

Further, we may amend any aspect of any provision of these Terms of Use from time to time, at any time and at any interval, including, without limitation, the fees we charge for Services or any other terms.  We will provide you with advance notice of any amendments we make to these Terms of Use by sending you an email.  If you do not accept amendments to these Terms of Use, you must terminate your subscription or other use of the Site and the Services, and these Terms of Use will automatically terminate by the effective date of the amendments.  The effective date of amendments to these Terms of Use will be the later of (a) the date specified in the notice; and (b) the date that is 30 days after the day on which you receive the notice.

Your use of the Site or the Services after the effective date of a modification or termination of the Services and/or Site, or amendment of these Terms of Use (as applicable) will be deemed to be acceptance of such modification, termination, or amendment.

4. Payment Terms; Cancellation

You agree to pay, and we will automatically charge, all account fees, including any usage that exceeds the Thresholds at the rates posted, and including any applicable taxes, at the rates in effect when the fees are incurred. We may change the fees then in effect, or add new fees, by giving Users advance notice. You may cancel your subscription at any time by sending us an email: info@fluidware.com. Upon receipt of your cancel selection, we will promptly terminate your access to the Services. No refunds of subscription fees will be given. We reserve the right to terminate your subscription and/or discontinue Services at any time for any reason.

5. Registration and Password

You will provide current, complete, accurate information in the registration section of the Site. You will further update and keep that information current as needed. You will provide a password in order to access the Services and your account. Email login must be a valid email address maintained by you. You are solely responsible for maintaining the confidentiality of your password and account information. You will immediately notify us of any unauthorized account activity, or any unauthorized use of your email list(s) or any other breach of security you become aware of.This website is a single user service. Multiple logins and passwords to the same account are not available or permitted. You may not share logins and passwords with others. Sharing login information is in violation of this Agreement and may result in immediate account termination.

6a. Privacy

We are committed to protecting the privacy and  confidential information of Users. For more information on our Privacy Policy, please click here. You agree to maintain and comply with a privacy policy that is consistent with the Fluidware Privacy Policy. You are responsible for all decisions with respect to the personally identifiable information of persons that respond to your surveys or to whom you send surveys. You represent and warrant that your surveys will not target children under 13 and that you will not knowingly collect personally identifiable information from children under 13.

6b. Confidentiality

We agree not to use any of your Confidential Information (defined below) for any purpose except to operate the Site and Services in accordance with this Agreement. We agree not to disclose any of your Confidential Information to any third party, other than to (i) our employees, consultants and contractors who are bound by confidentiality obligations and are required to have access to the Confidential Information in order to operate the Site and Services, and (ii) any assignee or transferee of the rights and/or obligations under this Agreement. Nothing in this Agreement limits our right to independently develop, acquire or market products, ideas, or businesses, without use of your Confidential Information. “Confidential Information” may include, solely to the extent entered into the Services or Site by you, (a) technical information, know-how and other intellectual property, to the fullest extent that such information is maintained as a trade secret by you; (b) confidential marketing strategies; (c) confidential future product plans; (d) confidential financial information (including pricing); and (e) other confidential business information. Confidential Information will not include any information that (i) was publicly known and generally available in the public domain prior to the time of disclosure by you; (ii) becomes publicly known and generally available after disclosure by you through no action or inaction of ours; (iii) is already in our possession at the time of disclosure by you; (iv) is obtained by us from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by us without use of or reference to your Confidential Information; or (vi) is required by law to be disclosed by us, provided that we give you prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.

7. Anti-Spam Policy

Fluidware, a leading Web-based application for research and feedback, is committed to being a trusted member of the Internet community. As such, we have adopted a firm anti-spam stance. Spam can deluge a recipient’s email box and waste the recipient’s time and money. Spam often causes recipients to complain to their Internet Service Providers who in turn may block or restrict access from legitimate services like Fluidware, and Users, like you. To help recipients be free from spam, and to maximize the availability of our Services to our community of Users, we have taken a “zero tolerance” stand against spam. You acknowledge, warrant and agree that:

◦You will not engage in any spamming activities in your use of the Services.

◦You understand that Fluidware is serving as “survey host” and is not the sender or originator of any survey, and that you are therefore solely responsible for your email/SMS-ing activities using the Services.

◦You understand that in Fluidware’s capacity as a “survey host”, any email, SMS, or other messaging activities through services provided by Fluidware that do not directly relate to your use of Fluidware’s services in this capacity are strictly forbidden. In order to maintain our high standing as a message-sending entitity we require that messages sent through our systems have a high rate of interaction with the intended recipients, and thus, do not permit the use of these systems for the purposes of email marketing in any way that is not strictly in the spirit of collecting data from the targeted recipients.

◦You warrant that you either have an ongoing business or personal relationship with or have obtained consents to send email/SMS messages inviting participation in a survey to the persons on your own email/mobile phone list and on any lists you have acquired from a third party.

◦Your use of the Site and Services will not violate any Canada or foreign spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited mail.

◦If you engage in any unlawful spamming activity, Fluidware will report such conduct to the appropriate authorities and turn over any and all information, including

personally identifiable information, to appropriate law enforcement persons or entities.

◦We may request at any time that you provide proof that your email/SMS recipients have agreed to receive email/SMS messages from you. We may require that you provide the name of a list vendor and documentation of specific opt-in processes you or the vendor have used.

We will terminate the account of any User determined to have used the Services in connection with any spam email/SMS or otherwise breached these Terms of Use. Please be advised that we may also terminate your account if your mailings result in high bounce rates, a report or complaint of spam against the sender, poor monitoring of recipient consents including lax address book and email/mobile phone list management, or lack of compliance with anti-spam guidelines. We reserve the right to terminate your account(s) and your use of the Services, without notice, if we believe your activities are not in compliance with this Anti-Spam policy. We thank you for your compliance with our Anti-Spam policy and your commitment to good email/SMS-ing practices.

8. Other Prohibited Uses

You acknowledge, warrant and agree that:

◦You will not transmit through the Service or the Site any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist,

illegal or otherwise objectionable material or content.

◦You will not send any transmission that attempts to hide your identity or represents you as someone else.

◦Any attempt by you to transmit, publish or distribute material or content that promotes, provides or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group is strictly prohibited.

◦You will not use the Service or the Site to send any materials, including surveys and requests to take surveys, to any persons under 18 years of age unless and until you have taken and follow all necessary action and compliance pursuant to state and federal laws.

◦You will not use this service to transmission any emails to third parties that is not pertaining to inviting participants to take a survey, or follow up with said participants regarding their participation in the aforementioned survey.

◦You will not upload or distribute in any way any files that contain viruses, corrupted files or any similar software or programs that may damage the operation of anyone else’s computer, the Service or the Site.

◦You will not interfere or disrupt networks connected to the Service and the Site.

◦Any attempt by you to gain unauthorized access to any computer system, including accounts, lockers or databases maintained by and for Fluidware, is strictly prohibited.

◦You will comply with all laws, rules and regulations regarding transmission of technical data exported from the country of Canada.

If you engage in any activity set forth in this paragraph or violate any terms or conditions of these Terms of Use, your account will be terminated and use of the Service and Site prohibited. We will report any unlawful conduct to the appropriate authorities and turn over any and all information regarding such activity to appropriate persons or entities.

9. Disclaimer of Warranties

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE AND THE SITE IS AT YOUR SOLE RISK. THE SERVICE AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.TO THE FULLEST EXTENT ALLOWED BY LAW, Fluidware EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CONTENTS OF THE

SERVICES OR THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Fluidware ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN CONTENT.

Fluidware IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY SURVEY OR INVITATIONS TO TAKE SURVEYS OR INVITATIONS TO VIEW SURVEY RESULTS CREATED ON OR THROUGH THE SERVICE NOR IS IT RESPONSIBLE FOR THE RESPONSES SUBMITTED TO ANY SURVEY REQUESTS OR FOR THE RESULTS GENERATED BY SURVEY RESPONSES. Fluidware DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RELIABILITY OR ACCURACY OF THE REGISTRATION INFORMATION SUPPLIED TO Fluidware NOR THE RESPONSES OR INFORMATION SUPPLIED BY SURVEY RESPONDENTS TO USERS IN RESPONSE TO SURVEYS. Fluidware DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE CONSEQUENCES OF THE USE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS NOR DOES Fluidware WARRANT THE CORRECTNESS, USEFULNESS, RELIABILITY, ACCURACY OR OTHERWISE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS. Fluidware IS NOT RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR OTHER LOSS RESULTING FROM USE OF OR RELIANCE IN ANY WAY ON ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS CREATED ON OR THROUGH THE SERVICE OR THE SITE. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY SURVEYS, SURVEY RESPONSES, SURVEY RESULTS OR OTHER INFORMATION RECEIVED WHILE USING THE SERVICE OR SITE.

10. Links and Advertisers

Fluidware may provide advertising space and/or links and pointers to Internet sites maintained by third parties. Fluidware has not reviewed all of the third -party sites nor reviewed any products or services they may provide. Fluidware is not responsible for nor does it endorse the contents or any products or services of such third parties or their sites. Fluidware DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES OFFERED OR SUGGESTED BY THIRD PARTIES ON THE SITE. Fluidware DOES NOT ENDORSE OR OTHERWISE WARRANT OR GUARANTEE THE PRODUCTS OR SERVICES THAT ARE EITHER ADVERTISED ON THE SITE OR CONNECTED BY LINK.

11. Termination

These Terms of Use and the Service may be terminated by Fluidware at any time. Fluidware shall not be liable to you or any third party in any manner for termination of the Service. In the event you should become dissatisfied with the Terms of Use or any modifications thereof, or with the Service or the Site, your only recourse is to discontinue use of the Service, terminate your subscription, and give notice to us of these actions. Upon termination, your right to use the Service and the Site cease immediately and Fluidware shall have no obligation whatsoever to retain, forward or make available to you any surveys, survey responses or survey results.

12. Indemnification

You agree to defend, indemnify and hold harmless Fluidware, its parent entities, subsidiaries, affiliates, officers, and employees, from any and all claims and demands, including attorneys’ fees, due to or arising from your use of the Site or the Service, surveys, survey responses, survey results and any other conduct related in any way to the Service or the Site, including but not limited to breaching any warranty or provision contained in these Terms of Use.

13. Jurisdiction

These Terms of Use and the relationship between you and Fluidware shall be treated as if entered into and executed in the province of Ontario and shall be governed and construed in accordance with the laws of the province of Ontario, without regard to conflict of law principles, and also excluding the United Nations Convention on Contracts for the International Sale of Goods. You agree to submit to personal and exclusive jurisdiction and venue of the courts in Ontario, Canada. Fluidware makes no representation that the

materials and content on the Site or relating to the Services are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is strictly forbidden. Those who access the Services or the Site from other locations do so on their own initiative and at their own risk and are responsible for compliance with local laws. Any claim or demand under these Terms of Use must be made within 1 year of the occurrence of the underlying facts.

14. Nature of Agreement

You agree that your completion of the registration procedure constitutes agreement to these Terms of Use. Further, these Terms of Use are the entire and only agreement between you and Fluidware and supersede any prior or other understandings, representations or warranties including, but not limited to, any nondisclosure agreements, purchase orders, license agreements, service agreements, invoices or other terms and conditions that you may provide to us in respect of the Site or Services. You agree that each use of the Services and the Site reaffirms your acknowledgment and agreement to the most current version of these Terms of Use.

15. Assignment

Fluidware may, at any time, assign or transfer the rights and/or obligations hereunder to an affiliate or other third party upon email or other notice to you. Fluidware may also subcontract some or all of the Services to service providers acting on our behalf.

16. General Provisions

In any dispute arising from the relationship between you and Fluidware or these Terms of Use, the prevailing party shall be entitled to reasonable attorneys’ fees and costs. The failure by Fluidware to enforce any right or provision under these Terms of Use shall not constitute a waiver of that provision or any other provision of these Terms of Use. If any provision of these Terms of Use shall be determined to be invalid or unenforceable by a court of competent jurisdiction, the other provisions shall remain in full force and effect.