- Terms of Service
- Health and Safety
- Financial Conflict of Interest Policy
- Android Beta Program Agreement
Floreo Terms of Service
Welcome, and thank you for your interest in Floreo, Inc. (“Floreo,” “we,” or “us”) and our website at www.floreotech.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Floreo regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND Floreo ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
(1) Service Overview. The Service provides virtual reality content for learning skills while allowing a supervising adult to monitor, participate, and actively coach the virtual reality user. The virtual reality user’s progress and results are tracked and presented informationally to you.
(2) Not Medical Advice. The Service and all materials and content available through the Service are not medical advice, diagnosis, or treatment of any medical condition or health problem, or an endorsement, representation, or warranty that any particular medication or treatment is safe, appropriate, or effective for you. Always consult a physician or other healthcare provider for medical care and advice. Your use of the Service does not create any express or implied medical relationship between you and Floreo or between Floreo and any other user of the Service.
(3) Eligibility. You must be at least 18 years old to create an account to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
(4) Accounts and Registration. To access most features of the Service, you must register for an account. In certain instances, to register for an account you will be required to enter into an additional agreement with Floreo. If you are using the Service on behalf of or as a member of an institutional subscriber, your institution may have agreed to a separate agreement with Floreo that supersedes portions of these Terms. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com.
(5) General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
(5.1) Price. Floreo reserves the right to determine pricing for the Service. Floreo will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Floreo may change the fees for any feature of the Service, including additional fees or charges, if Floreo gives you advance notice of changes before they apply. Floreo, at its sole discretion, may make promotional offers with different features and different pricing to any of Floreo’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
(5.2) Authorization. You authorize Floreo to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Floreo, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Floreo may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
(5.3) Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Floreo to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please see the appropriate product page. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by accessing the cancellation feature in the app in your profile or contacting us at: firstname.lastname@example.org.
(5.4) Delinquent Accounts. Floreo may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
(6.1) Limited License. Subject to your complete and ongoing compliance with these Terms, Floreo grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
(6.2) License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
(6.3) Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Floreo an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
(7) Ownership; Proprietary Rights. The Service is owned and operated by Floreo. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Floreo are protected by intellectual property and other laws. All Materials included in the Service are the property of Floreo or its third party licensors. Except as expressly authorized by Floreo, you may not make use of the Materials. Floreo reserves all rights to the Materials not granted expressly in these Terms.
(8) Third Party Terms
(8.1) Third Party Services and Linked Websites. Floreo may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Floreo with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Floreo may transfer that information to the applicable third party service. Third party services are not under Floreo’s control, and, to the fullest extent permitted by law, Floreo is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Floreo’s control, and Floreo is not responsible for their content.
(8.2) Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
(9) User Content
(9.1) User Content Generally. Certain features of the Service may permit users to upload content to the Service, including “playlists”, messages, reviews, photos, video, images, folders, data, text, audio and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
(9.2) Limited License Grant to Floreo. By providing User Content to or via the Service, you grant Floreo a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
(9.3) Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
(9.4) User Content Representations and Warranties. Floreo disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Floreo and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Floreo, the Service, and these Terms;
(b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Floreo to violate any law or regulation; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
(9.5) User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Floreo may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Floreo with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Floreo does not permit copyright-infringing activities on the Service.
(10) Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
(a) use the Service for any illegal purpose or in violation of any local, state, national, or international law;
(b) harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
(c) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
(d) interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
(e) interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
(f) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
(g) sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or
(h) attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
(11) Digital Millennium Copyright Act
(11.1) DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
1875 Connecticut Ave. NW, 10th Floor, Washington DC 20009
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
(11.2) Repeat Infringers. Floreo will promptly terminate the accounts of users that are determined by Floreo to be repeat infringers.
(12) Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms or your next periodic renewal of the Subscription Service. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
(13) Term, Termination and Modification of the Service
(13.1) Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
(13.2) Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Floreo may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. If Floreo terminates these Terms or your account for convenience, and not for your breach of these Terms, Floreo will refund a pro rata portion of any prepaid fees. You may terminate your account and these Terms at any time deleting your account in the app or contacting customer service at email@example.com.
(13.3) Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Floreo any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 6.3, 7, 9.2, 13.3, 14, 15, 16, 17 and 18 will survive.
(13.4) Modification of the Service. Floreo reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. If Floreo discontinues the Service, Floreo will refund to you a pro rata portion of any prepaid fees. Floreo will have no other liability for any change to the Service or any suspension or termination of your access to or use of the Service.
(14) Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Floreo and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Floreo Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
(15) Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. Floreo DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Floreo DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Floreo DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR Floreo ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Floreo ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Floreo does not disclaim any warranty or other right that Floreo is prohibited from disclaiming under applicable law.
(16) Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FLOREO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FLOREO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 17.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FLOREO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FLOREO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(17) Dispute Resolution and Arbitration
(17.1) Generally. In the interest of resolving disputes between you and Floreo in the most expedient and cost effective manner, and except as described in Section 17.2, you and Floreo agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Floreo ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(17.2) Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
(17.3) Arbitrator. Any arbitration between you and Floreo will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Floreo. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(17.4) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Floreo’s address for Notice is: Floreo, Inc., 1875 Connecticut Ave NW, 10th Floor, Washington, DC 20009. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Floreo may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Floreo must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Floreo in settlement of the dispute prior to the award, Floreo will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
(17.5) Fees. If you commence arbitration in accordance with these Terms, Floreo will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the District of Columbia but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Floreo for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(17.6) No Class Actions. YOU AND FLOREO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Floreo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(17.7) Modifications to this Arbitration Provision. If Floreo makes any future change to this arbitration provision, other than a change to Floreo’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Floreo’s address for Notice of Arbitration, in which case your account with Floreo will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(17.8) Enforceability. If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
(18.2) Governing Law. These Terms are governed by the laws of Washington, DC without regard to conflict of law principles. You and Floreo submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Washington DC for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington DC, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
(18.4) Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
(18.6) Contact Information. The Service is offered by Floreo, Inc., located at 1875 Connecticut Ave NW, 10th Floor, Washington, DC 20009 You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org. You can access a copy of these Terms by clicking here: https://floreotech.com/legal-documents#terms-of-service
(18.7) Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
(18.8) No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
(18.9) International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
(19) Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Floreo only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(20) Change Log
Information We Collect.
A. Information You Provide to Us.
Registration and Profile Information. When you sign up for an account, we ask you for your email address and password. Once you create an account, you will be able to create one or multiple player accounts associated with your account. When you create a player account, we ask you to insert a text identifier that will be used to identify the player, as well as the player’s birth month and year.
Payment Information. If you sign up for a subscription, your payment information, such as any credit or debit card information you provide, may be collected and stored by us and/or the payment processors with which we work.
Communications. If you contact us directly, we may receive additional information about you. For example, when you contact customer support, we may receive your name, email address, phone number, the contents of the message and/or attachments you may send us, and any other information you may choose to provide. If you subscribe to our newsletter, we will collect certain information from you, such as your email address. When we send you emails, we may track whether you open them to learn how to deliver a better customer experience and improve our Services.
B. Information We Collect When You Use Our Services.
Device Information. We receive information from Users’ devices, including IP address, web browser type, mobile operating system version, phone carrier and manufacturer, application installations, device identifiers, mobile advertising identifiers, and push notification tokens.
- Usage Information and Recording Sessions. To help us understand how you use our Services and to help us improve them, we automatically receive information about your interactions with our Services, like the account you use, the lessons you view, the progress you make on those lessons, the tasks completed within those lessons, task scores, progress on certain skills, pages or other content you view, searches you conduct, any content you post, and the dates and times of use.
Information from Cookies and Similar Technologies. We may collect information using cookies or similar technologies. Cookies re small text files containing a string of alphanumeric characters. We may use both session cookies and persistent cookies. A session cookie disappears after you close your browser/app. A persistent cookie remains after you close your browser/app and may be used by your browser/app on subsequent visits to the Service.
Please review your web browser’s “Help” file to learn the proper way to modify your cookie settings. Please note that if you delete, or choose not to accept, cookies from our Services, you may not be able to utilize the features of our Services to their fullest potential.
We use Google Analytics and other analytics providers to collect and process certain analytics data. Google provides some additional privacy options described at www.google.com/policies/privacy/partners/ regarding Google Analytics’ cookies.
How We Use the Information We Collect.
We use the information we collect from Users to:
- Provide, improve, expand, personalize, and promote our Services;
- Understand and analyze how our Services are used;
- Assess User progress and compare it to other Users;
- Develop new products, services, features, and functionality;
- Communicate with you, either directly or through one of our partners, including for customer service, to provide you with updates and other information relating to the Service, and for marketing and promotional purposes;
- Send you text messages and push notifications;
- Facilitate transactions and payments;
- Find and prevent fraud; and
How We Share the Information We Collect.
Vendors and Service Providers. We may share any information we receive with vendors and service providers retained in connection with the provision of our Services. In addition, we use third party analytics vendors to evaluate and provide us with information about your use of our Services and third party advertising partners to show ads that we think may interest you. These analytics service providers may set and access their own cookies, pixel tags and similar technologies on our Services and they may otherwise collect or have access to information about you which they may collect over time and across different online services.
User Content. We may provide you the ability share content, such as User-driven curriculum or recorded sessions, at your direction. If you choose to share your information and/or content with other Users, your profile information, such as your profile photo, may be visible to those Users.
Aggregate Data. Where legally permissible, we may share information about Users with our partners in aggregated or de-identified form that can’t reasonably be used to identify you.
As Required By Law and Similar Disclosures. We may access, preserve, and disclose your information if we believe doing so is required or appropriate to (a) comply with law enforcement requests and legal process, such as a court order or subpoena; (b) respond to your requests; or (c) protect your, our or others’ rights, property, or safety. For the avoidance of doubt, the disclosure of your information may occur if you post any objectionable content on or through our Services.
Consent. We may also disclose your information with your permission.
Sharing Preferences. We provide you with settings to allow you to set your sharing preferences for content you post to our Services. Certain information may always be publicly available to others, and other information is made publicly available to others by default. To change whether certain information is publicly viewable, you can adjust the settings in your account.
Email Subscriptions. You can unsubscribe from our promotional emails via the link provided in the emails. Even if you opt-out of receiving promotional messages from us, you will continue to receive administrative messages from us.
We are committed to protecting your information. Even though we take reasonable precautions to protect your data, because our Services are hosted electronically, we cannot guarantee the security or privacy of your information.
Our Services are hosted in the United States and intended for visitors located within the United States. If you choose to use our Services from the European Union or other regions of the world with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your personal information outside of those regions to the United States for storage and processing. Also, we may transfer your data from the U.S. to other countries or regions in connection with storing and processing data, fulfilling your requests, and operating our Services. By providing any information, including personal information, on or to our Services, you consent to such transfer, storage, and processing.
Update Your Information or Pose a Question.
Floreo Virtual Reality Health and Safety Warnings
Virtual reality is not recommended for people with certain pre-existing conditions such as a history of seizures or photosensitive response on EEG, eye movement impairments such as strabismus, migraines, or who may be prone to motion sickness.
Some people who use virtual reality experience cybersickness, which is related to motion sickness and vertigo. Symptoms include general discomfort, headache, nausea, sweating, and fatigue. If this happens, it will go away after using the virtual reality app.
The vision of young children (especially those under six years old) is still under development.
Consult with your child’s doctor or optometrist before allowing young children to watch virtual reality images or play virtual reality games. Adults should supervise young children to ensure they follow the recommendations listed above.
Various virtual reality headset manufacturers have their own health and safety warnings included with the hardware (such as Oculus, Samsung, HTC, etc). Users are responsible to read, evaluate and follow these guidelines, warnings and instructions. Please ensure all users do use the headset in accordance with these health and safety warnings. Adults should monitor children closely during and after use of virtual reality headsets.
We recommend that you consult with your doctor or talk to our team if you have any questions about the risks of virtual reality.
This Financial Conflict of Interest (“FCOI”) policy applies to all Investigators employed by the Floreo, Inc. (“Floreo”) who intend to pursue research funding (including contracts, cooperative agreements, grants and fellowships) from the U.S. Public Health Service (PHS), which encompasses the National Institutes of Health (NIH).
Floreo encourages its staff to engage in research activities using the highest ethical standards and preventing the introduction of bias into their research.
This Policy is intended to comply with the federal regulations concerning objectivity in research (42 CFR Part 50 Subpart F and 45 CFR Part 94). The federal regulations and Floreo’s policy promote objectivity in research by establishing standards that provide a reasonable expectation that the design, conduct, and reporting of PHS-funded research will be free from bias resulting from Investigator financial conflicts of interest.
Each Investigator who is planning to participate in PHS-funded research must disclose to Floreo’s Financial Conflicts of Interest Officer (“COI Officer”) the Investigator’s significant financial interests (and those of the Investigator’s spouse and dependent children) no later than the time of application for PHS-funded research.
Each Investigator who is participating in PHS-funded research must submit an updated disclosure of significant financial interests at least annually, in accordance with the specific time period prescribed by Floreo, during the period of the award. Such disclosure shall include any information that was not disclosed initially to Floreo or in a subsequent disclosure of significant financial interests (e.g., any financial conflict of interest identified on a PHS-funded project that was transferred from another Institution), and shall include updated information regarding any previously disclosed significant financial interest (e.g., the updated value of a previously disclosed equity interest).
Each Investigator who is participating in PHS-funded research must submit an updated disclosure of significant financial interests within thirty (30) days of discovering or acquiring (e.g., through purchase, marriage or inheritance) a new significant financial interest.
Completed FCOI Disclosure Forms will be reviewed by Floreo’s COI Officer to determine whether an Investigator’s significant financial interest constitutes a FCOI. The Investigator’s significant financial interest will be considered to be a FCOI if the COI Officer reasonably determines that the significant financial interest could directly and significantly affect the design, conduct, or reporting of the PHS-funded research, or is in an entity whose financial interest could be affected by the research.
Management and Reporting of Financial Conflicts of Interest to PHS
Upon determination that a significant FCOI related to PHS-funded research exists, the COI Officer will develop and implement a written management plan that will specify the actions that have been, and shall be, taken to manage such FCOI. Management plans may include one or more of the following conditions or restrictions: public disclosure of FCOI (for example, when presenting or publishing the research); for research projects involving human subjects research, disclosure of FCOI directly to participants; appointment of an independent monitor capable of taking measures to protect the design, conduct, and reporting of the research against bias resulting from the FCOI; modification of the research plan; change of personnel or personnel responsibilities, or disqualification of personnel from participation in all or a portion of the research; reduction or elimination of the financial interest; and severance of relationships that create financial conflicts. The Investigator must agree to the management plan by signing it before performing any PHS-funded research.
When Floreo identifies a significant financial interest that was not disclosed in a timely manner for whatever reason, within sixty (60) days the COI Officer will review the significant financial interest; determine whether it is related to PHS-funded research; determine whether a FCOI exists; and, if so, implement a management plan for the FCOI. Furthermore, whenever a FCOI is not identified or managed in a timely manner, Floreo will complete a retrospective review of the Investigator’s activities and the PHS-funded research project to determine whether any portion of the PHS- funded research conducted during the noncompliance time period was biased in the design, conduct or reporting of such research. This review will be completed within one hundred twenty (120) days of the noncompliance determination. Floreo will follow PHS regulations regarding reporting of a FCOI or non-compliance to the regulators.
Floreo’s FCOI policy will be posted on the Floreo’s public website. Prior to the expenditure of funds received under a PHS-funded research project, Floreo will ensure public accessibility, via written response to a requestor within five business days of receiving the request, of information concerning any Significant Financial Interest that meets the following criteria:
- The significant financial interest was disclosed and is still held by the senior/key personnel as defined by this subpart;
- Floreo determines that the significant financial interest is related to the PHS-funded research; and
- Floreo determines that the significant financial interest is a financial conflict of interest.
Floreo will maintain records relating to all Investigator disclosures of financial interests and Floreo’s review of, and response to, such disclosures and all actions under Floreo’s policy or retrospective review, if applicable, for at least three (3) years from the date the final expenditures report is submitted to the PHS, or, where applicable, from other dates specified in 45 CFR 75.361 for different situations.
Subrecipients on PHS/DHHS-funded projects are subject to and required to comply with and follow the regulations as set forth in the Financial Conflict of Interest Regulations, Promoting Objectivity in Research (42 CFR Part 50 Subpart F and 45 CFR Part 94), even though the subrecipients are not directly awarded the funds from PHS or any PHS/DHHS agency. Subrecipients must demonstrate or provide adequate assurances that the policies and procedures of their institutions are in compliance with the regulation.
The following definitions are provided to assist in understanding this Policy and are derived from federal regulations.
Financial Conflict of Interest (FCOI): A significant financial interest that could directly and significantly affect the design, conduct, or reporting of PHS-funded research.
Financial Interest: Anything of monetary value, whether the value is readily ascertainable, received or held by the Investigator, his/her spouse, or dependent children.
Institutional responsibilities: An Investigator’s professional responsibilities on behalf of Floreo, and as defined by Floreo in its policy on financial conflicts of interest, which may include activities such as research, research consultation, teaching, professional practice, institutional committee memberships, and service on panels such as institutional review boards or data and safety monitoring boards.
Investigator: The project director or principal investigator and any other person, regardless of title or position, who is responsible for any part of the design, conduct, or reporting of research funded by the PHS, or proposed for such funding, which may include collaborators or consultants.
Research: A systematic investigation, study or experiment designed to develop or
contribute to generalizable knowledge relating broadly to public health, including behavioral and social- sciences research. The term includes any such activity for which research funding is available from a PHS Awarding Component through a contract, grant, or cooperative agreement, excluding Small Business Innovation Research (SBIR) and Small Business Technology Transfer Research (STTR) Phase I Programs.
Significant financial interest: (1) A financial interest consisting of one or more of the following interests of the Investigator (and those of the Investigator’s spouse and dependent children) that reasonably appears to be related to the Investigator’s institutional responsibilities: (a) if the value of any remuneration received from any publicly traded entity in the twelve months preceding the disclosure and the value of any equity interest in the entity as of the date of disclosure, when aggregated, exceeds $5,000. For purposes of this definition, remuneration includes salary and any payment for services not otherwise identified as salary (e.g., consulting fees, honoraria, paid authorship); equity interest includes any stock, stock option, or other ownership interest, as determined through reference to public prices or other reasonable measures of fair market value; (b) if the value of any remuneration received from any non-publicly traded entity in the twelve months preceding the disclosure, when aggregated, exceeds $5,000, or when the Investigator (or the Investigator’s spouse or dependent children) holds any equity interest (e.g., stock, stock option, or other ownership interest); or (c) intellectual property rights and interests (e.g., patents, copyrights), upon receipt of income related to such rights and interests.
(2) Investigators also must disclose the occurrence of any reimbursed or sponsored travel (i.e., that which is paid on behalf of the Investigator and not reimbursed to the Investigator so that the exact monetary value may not be readily available), related to their institutional responsibilities. This disclosure requirement excludes travel that is reimbursed or sponsored by Federal, state, or local government agencies, U.S. institutions of higher education, research institutes affiliated with higher education institutions, academic teaching hospitals, and medical centers. For each travel event, disclosure includes the purpose of the trip, the sponsor/organizer, and the destination, duration and approximate monetary value.
(3) The term significant financial interest does not include: (a) salary, royalties, or other remuneration paid by Floreo; (b) intellectual property rights assigned to Floreo and agreements to share in royalties related to such rights; (c) any ownership interest in Floreo held by the Investigator given that Floreo is a commercial and for-profit organization; (d) income from investment vehicles, such as mutual funds, retirement accounts, or 529 funds and other college savings funds, as long as the Investigator does not directly control the investment decisions made in these vehicles; (e) income from seminars, lectures, or teaching engagements sponsored by a Federal, state, or local government agency, U.S. institutions of higher education, research institutes affiliated with higher education institutions, academic teaching hospitals, and medical centers; or (f) income from service on advisory committees or review panels for a Federal, state, or local government agency U.S. institutions of higher education, research institutes affiliated with higher education institutions, academic teaching hospitals, and medical centers.
Required Education on the FCOI Federal Regulations
NIH provides online training here: https://grants.nih.gov/grants/policy/coi/tutorial2018/story_html5.html Training must take place prior to engaging in the PHS-funded research. Please be sure to print a certificate of completion at the end of the training session and send a copy to the Sponsored Research Office.
Financial Conflict of Interest (FCOI) regulation (42CFR Part 50 Subpart F – Grants):
Financial Conflict of Interest (FCOI) regulation (45CFR Subtitle A Subchapter A Part 94 – Responsible Prospective Contractors): https://www.ecfr.gov/cgi-bin/text- idx?SID=8272919e6e9766a3a9f66b6d508ff747&mc=true&node=pt45.1.94&rgn=div5
Adopted: April 29, 2019
* * * * * *
FLOREO ANDROID BETA PROGRAM AGREEMENT
Last Updated: June 19, 2019
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THEFLOREOANDROIDBETAPROGRAMAGREEMENT(“AGREEMENT”)CAREFULLY. IFYOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “ACCEPT” BUTTON. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “DECLINE” BUTTON AND YOU WILL BE INELIGIBLE TO PARTICIPATE IN THE FLOREO BETA MOBILE APPLICATION PROGRAM.
1. Participation in the Floreo Android Beta Program. The purpose of the Floreo Android Beta Program (“Beta Program”) is to make alpha, beta, seed, and other Pre-Release Android App, pre- release services, and related documentation, materials, and information (collectively, the “Pre-Release Android App”) available to Beta Program participants from time to time for the purpose of providing FloreowithfeedbackonthequalityandusabilityofthePre-ReleaseAndroidApp. Youunderstandand agree that participation in the Beta Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Floreo. You understand that your participation intheBetaProgramdoesnotobligateFloreotoprovideyouwithanyPre-ReleaseAndroidApp. Floreo reserves the right to modify the terms, conditions, and policies of this Beta Program from time to time, andtorevokeyourparticipationinthisBetaProgramatanytime. IfFloreomakeschangestotheterms and conditions of this Agreement, then Floreo will present such revised terms and conditions to you on the Beta Program web portal.
By participating in the Beta Program, You certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to join the Beta Program. This Agreement is void where prohibited by law and the right to become a Beta Program participant is not granted in such jurisdictions. Unless otherwise agreed or permitted by Floreo in writing, you cannot share or transfer any software or other materials you receive from Floreo in connection with being a Beta Program participant. The Floreo ID and password you use to login as a Beta Program participant cannot be shared in any way or with any one. You are responsible for maintaining the confidentiality of your Floreo ID and password and for any activity in connection with your account. Notwithstanding the foregoing restrictions in this Section 1, if you are the parent or legal guardian of individuals between the ages of 13 and the legal age of majority in the jurisdiction in which you reside, you may allow such individuals to share your Floreo ID and password for their use in connection with the Beta Program solely under your supervision and only in accordance with this Agreement. You are responsible for such individuals’ compliance with and violations of this Agreement and any other Floreo agreements.
2. Access to Pre-Release Android App; Seeding Tools; and Additional Terms. You understand that Floreo may make Pre-Release Android App available to Beta Program participants for downloading online through the Beta Program download web link, and/or as otherwise provided through the Beta Program (e.g., by manual download of a digital image, by providing software configuration profiles, etc.). From time to time, Floreo, at its option, may also provide you with software or services as part of the Beta Program, including but not limited to scripts, code snippets, utilities, configuration profiles, sample code, troubleshooting applications and bug submission tools (“Seeding Tools”) as part of your participation in the Beta Program. All use of such Pre-Release Android App and Seeding Tools shall be pursuant to the terms and conditions of this Agreement and/or another license agreement accompanying such Pre-Release Android App or Seeding Tools (collectively, “Pre-Release Android App” and “Seeding Tools” shall be referred to as “Floreo Android App” for purposes of this Agreement).
If the Floreo Android App is accompanied by a separate license agreement, you agree that the license agreement accompanying such Floreo Android App, in addition to Sections 5 and 6 of this Agreement, shall govern your use of the Floreo Android App. Any inconsistencies between the provisions of the license agreement accompanying the Floreo Android App and Sections 5 and 6 of this Agreement shall be governed by this Agreement. If there is no license agreement accompanying the Floreo Android App, your use of the Floreo Android App will be subject to the provisions of this Agreement. Further, the Floreo Android App may enable access to Floreo and third party services and web sites (collectively and individually, “Services”). Use of these Services requires Internet access and use of certain Services may require a Floreo ID, may require you to accept additional terms and may be subject to additional fees.
3. License Grant and Restrictions. Subject to your compliance with this Agreement, Floreo hereby grants you a personal, limited license to use the Floreo Android App on Floreo-branded products solely fortestingandevaluationpurposesandonlyinconnectionwiththisBetaProgram. Exceptasotherwise permitted under Section 15, this license does not grant you the right to use the Floreo Android App for any other purpose, or to disclose, reproduce, distribute, modify or create derivative works of the Floreo Android App. You agree not to decompile, reverse engineer, disassemble, decrypt, or otherwise attempt to derive the source code of any Floreo Android App (except as and only to the extent the foregoing restrictions are prohibited by applicable law, or to the extent as may be permitted by licensing termsgoverninguseofopen-sourcedcomponentsincludedwithanysuchFloreoAndroidApp). Unless otherwise permitted under Section 15 below, you certify that the Floreo Android App will only be used for testing and evaluation purposes in connection with the Beta Program, and will not be rented, sold, leased, sublicensed, assigned, distributed or otherwise transferred. Floreo retains ownership of all Floreo Android App, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any Floreo intellectual property.
4. Feedback; Contact from Floreo. As part of the Beta Program, Floreo will provide you with the opportunity to submit bug reports, questionnaires, enhancement requests, issue reports and/or support information (collectively, “Feedback”) to Floreo. Floreo may request this information from you through the Seeding Tools as well as by email, web questionnaires, bug forms, and other mechanisms. By agreeing to this Agreement, you agree that Floreo may contact you from time to time about the Beta Program, and you hereby consent to receive such communications. Except as otherwise set forth in Section 8, you agree that in the absence of a separate written agreement to the contrary, Floreo will be free to use any Feedback you provide for any purpose.
5. Definition of Confidential Information. You agree that the Pre-Release Android App and any information concerning the Pre-Release Android App (including its nature and existence, features, functionality, and screen shots), the Seeding Tools, and any other information disclosed by Floreo to you in connection with the Beta Program will be considered and referred to in this Agreement as “ConfidentialInformation.” InformationthatotherwisewouldbedeemedConfidentialInformationbut (a) is generally and legitimately available to the public through no fault or breach of yours, (b) is generally made available to the public by Floreo, (c) is independently developed by you without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation, or (e) any third party software and/or documentation provided to you by Floreo and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such software and/or documentation will not be considered Confidential Information under this Agreement. All Confidential Information remains the sole property of Floreo and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
6. Nonuse and Nondisclosure of Confidential Information. Except as expressly permitted in this Section 6, you agree that you will not disclose, publish, or otherwise disseminate any Confidential
Information to anyone other than individuals who are enrolled in the same individual seed as you, or as otherwise expressly permitted or agreed to in writing by Floreo. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Floreo Android App to third parties. You agree to use the Confidential Information solely for the permitted uses as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without the prior written approval of an authorized representative of Floreo in each instance. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Floreo that may be difficult to ascertain. Accordingly, you agree that Floreo will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
8. Consent to Collection and Use of Data.
8.1 Pre-Release Versions of Floreo Android App. In order to provide, test and help Floreo, its partners, and third party developers improve their products and services, and unless you opt out in the pre-release versions of the Floreo Android App, as applicable, you acknowledge that Floreo and its subsidiaries and agents will be collecting, using, storing, transmitting, processing and analyzing (collectively, “Collecting”) diagnostic, technical, and usage logs and information from your devices or computers that are running pre-release versions of the Floreo Android App as part of this Beta Program. This information will be Collected in a form that does not personally identify you and may be Collected from your devices or computer at any time, including when you sync or automatically over a secure over-the-air connection. The information that would be Collected includes, but is not limited to, general diagnostic and usage data, various unique device identifiers, various unique system or hardware identifiers, details about hardware and operating system specifications, performance statistics, and data about how you use your devices, computer, system and application software, and peripherals, and, if Location Services is enabled, certain location information. You agree that Floreo may share such diagnostic, technical, and usage logs and information with partners and third party developers for purposes of allowing them to improve their products and services that operate on or in connectionwithFloreo-brandedproducts. Byinstallingorusingpre-releaseversionsoftheFloreo Android App on your devices or computers, you acknowledge and agree that Floreo and its subsidiaries and agents have your permission to Collect all such information and use it as set forth above.
8.2 Other Pre-Release Android App and services. In order to test and improve Floreo’s products and services, and only if you choose to install or use other Pre-Release Android App or services provided as part of the Beta Program, you acknowledge that Floreo and its subsidiaries and agents may be Collecting diagnostic, technical, usage and related information from other Pre-Release Android App or services and from your computer, devices, peripherals or other hardware that uses such Pre- Release Android App. You should carefully review the release notes and other information disclosed to you by Floreo as part of the Beta Program prior to choosing whether or not to install or use any such otherPre-ReleaseAndroidApporservices. ByinstallingorusingsuchotherPre-ReleaseAndroid App or services, you acknowledge and agree that Floreo and its subsidiaries and agents have your permission to Collect any and all such information and use it as set forth above.
8.3 System Logs and Diagnostic Files. In addition, as part of your participation in the Beta Program, you may have the option of manually attaching and/or using Floreo’s Seeding Tools to gather detailed hardware and/or system diagnostic files (e.g., kernel logs, Floreo System Profile logs, hang logs, crash logs, spin logs, install logs, application logs, etc.) from your computer and/or devices (“System Logs”) tosendtoFloreo. SuchSystemLogsmayincludepersonallyidentifiableinformation,including,without limitation, your account name, calendar events, and email correspondence. Providing these System
Logs is voluntary, but if you do provide them to Floreo, then you acknowledge that Floreo may use them for Floreo’s diagnostic purposes and to improve the Beta Program and Floreo’s products and services.
9. No Support and Maintenance; Future Products. During your participation in the Beta Program or in a particular seed, Floreo is not obligated to provide you with any maintenance, technical or other support for the Pre-Release Android App. If, at Floreo’s option, such support is provided, it will be provided in addition to your normal warranty coverage for your computer and/or device. You agree to abide by any support rules and policies that Floreo provides to you in order to receive such support. You acknowledge that Floreo has no express or implied obligation to announce or make available a commercial version of the Pre-Release Android App to anyone in the future. Should a commercial version be made available, it may have features or functionality that are different from those found in the Pre-Release Android App licensed hereunder.
10. Discussion Forums. As part of the Beta Program, you may have the ability to participate in discussion forums provided by Floreo about the Pre-Release Android App and other Confidential Information that Floreo may make available to you. For purposes of such discussion forums, Floreo is providing a limited exception to Section 6 by allowing you to discuss certain Floreo Confidential Information received by you in connection with a particular seed with other seed participants who are in the same seed as you in the Floreo designated discussion forum for such seed, and only within this discussionforum. Exceptforthelimitedpurposeofdiscussionswithotherseedparticipantswithinsuch forums, you acknowledge and agree that this Agreement does not grant you the right to copy, reproduce, publish, blog, disclose, transmit, or otherwise disseminate any Floreo Confidential Information.
11. No Warranty. The Floreo Android App provided hereunder may be designated as alpha, beta, development, pre-release, untested, or not fully tested versions. The Floreo Android App may be incomplete and may contain errors or inaccuracies that could cause failures, corruption and/or loss of data or information. You expressly acknowledge and agree that, to the extent permitted by applicable law, all use of the Floreo Android App is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. FLOREO IS PROVIDING ALL CONFIDENTIAL INFORMATION, INCLUDING THE PRE-RELEASE ANDROID APP AND SEEDING TOOLS, TO YOU SOLELY ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. You acknowledge that Floreo has not publicly announced the availability of the Pre-Release Android App, that Floreo has not promised or guaranteed to you that such Pre-Release Android App will be announced or made available to anyone in the future, and that Floreo has no express or implied obligation to you to announce or introduce the Pre-Release Android App or any similar or compatible product, or to continue to offer access to the Pre-Release Android App in the future.
12. Disclaimer of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLATION, OR USE OF THE PRE-RELEASE ANDROID APP AND SEEDING TOOLS PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF THE PRE-RELEASE ANDROID APP ON YOUR COMPUTER, DEVICES AND/OR PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE,
INFORMATION OR DATA, AND IN NO EVENT WILL FLOREO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY LIABILITY THAT STEMS FROM ANY USE OF THE PRE- RELEASE ANDROID APP ON YOUR COMPUTER, DEVICES AND/OR ANY PERIPHERALS CONNECTED THERETO, AND/OR FROM ANY OTHER CONFIDENTIAL INFORMATION, AND/OR FLOREO’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF FLOREO HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FLOREO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. Term and Termination. This Agreement will continue in effect until terminated in accordance with thisSection13. YoumayterminatethisAgreementoranindividualseedingprojectatanytime,forany reason, but only by returning or destroying any Confidential Information that is in your possession or control (including, without limitation, any Pre-Release Android App); provided however that if you are unable to purge certain Pre-Release Android App from your computer and/or devices, then you agree that you will continue to hold the Pre-Release Android App as Confidential Information. Floreo may terminate this Agreement or an individual seeding project at any time, with or without cause, immediately upon written notice to you, and may terminate this Agreement immediately for any breach of the confidentiality provisions set forth herein. Within seven (7) days of your receipt of Floreo’s termination notice, or earlier if requested by Floreo, you will return, cease all use of, and/or destroy the Pre-Release Android App and all other Confidential Information as provided in this Section. Following termination of this Agreement or an individual seeding project for any reason, the restrictions of Section 3, 4-8, the last two sentences of Section 9, and 11-19, inclusive, will continue to bind the parties. The term of your license to use the Floreo Android App granted under Section 3 of this Agreement shall commence upon your installation or use of the Floreo Android App and will terminate automatically without notice from Floreo upon the earlier of (a) the next commercial release of the Floreo Android App, (b) the termination of the individual seeding project under which you obtained the Floreo Android App, (c) the termination of this Agreement, or (d) the date specified in the separate license accompanying the Floreo Android App (if any).
14. No Export. You agree that you will not export or re-export any of the Pre-Release Android App or Confidential Information received from Floreo except as authorized by United States law and the laws of the jurisdiction in which the Floreo Android App was obtained. In particular, but without limitation, the Floreo Android App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. DepartmentofCommerceDeniedPerson’sListorEntityListoranyotherrestrictedpartylists. Byusing the Floreo Android App, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Floreo Android App for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You certify that this Floreo Android App will only be used for evaluation and testing purposes, and will not be rented, sold, leased, sublicensed, assigned, or otherwise transferred. Further, you certify that you will not transfer or export any product, process or service that is a direct product of this Floreo Android App.
15. Third Party Software & Information. Portions of the Floreo Android App may include third party software and other copyrighted material. Acknowledgements, licensing terms, and disclaimers for such material are contained in the Floreo Android App, and your use of such material is governed by such respective terms. Mention of third parties and third party products in any materials, advertising, promotions or coupons provided to Beta Program participants is for informational purposes only and
constitutes neither an endorsement nor a recommendation. All third party product specifications and descriptions are supplied by the respective vendor or supplier, and Floreo shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
16. No Waiver or Assignment. No delay or failure to take action under this Agreement will constitute a waiver unless expressly waived in writing, signed by a duly authorized representative of Floreo, and no single waiver will constitute a continuing or subsequent waiver. This Agreement may not be assigned by you in whole or in part. Any contrary assignment shall be null and void.
17. Governing Law. Any litigation or dispute resolution between You and Floreo arising out of or relating to this Agreement, the Floreo Android App, or Your relationship with Floreo will take place in the District of Columbia, and You and Floreo hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within that District with respect to any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the District of Columbia. Notwithstanding the foregoing, if you are an individual entering into this Agreement solely as part of your employment for one of the entities listed below, then the following exceptions shall apply:
– If you are employed by an agency, instrumentality or department of the federal government of the United States, then this Agreement shall be governed in accordance with the laws of the United States of America, and in the absence of applicable federal law, the laws of the District of Columbia will apply. Further, and notwithstanding anything to the contrary in this Agreement, all claims, demands, complaints and disputes will be subject to the Contract Disputes Act (41 U.S.C. §§601-613), the Tucker Act (28 U.S.C. § 1346(a) and § 1491), or the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2401- 2402, 2671-2672, 2674-2680), as applicable, or other applicable governing authority.
– If you are employed by a U.S. public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which your educational institution is domiciled, except that body of state law concerning conflicts of law; and (b) any litigation or other dispute resolution between you and Floreo arising out of or relating to this Agreement, the Floreo Android App, or your relationship with Floreo will take place in federal court within the District of Columbia, and you and Floreo hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which your educational institution is domiciled.
This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
18. Government End Users. The Floreo Android App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
19. Severability; Complete Understanding. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary sothatthisAgreementshallotherwiseremaininfullforceandeffectandenforceable. ThisAgreement, including any appendices made effective pursuant to this Agreement and any additional licenses
accompanying the Floreo Android App, constitutes the entire agreement with respect to the Confidential Information disclosed herein and supersedes all prior or contemporaneous oral or written agreements concerning such Confidential Information. Except to the extent provided under Section 2 above, any inconsistencies between this Agreement and any license agreement accompanying the Floreo Android App will be governed by the license agreement accompanying the Floreo Android App. Except as expressly set forth herein, any waiver or amendment of any provision of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction.