Terms and Conditions

1. SAAS SERVICES AND SUPPORT

1.

Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

2.

Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with company standard practice.

2. RESTRICTIONS AND RESPONSIBILITIES

1.

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Servies (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.

Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

3.

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

4.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHh2S

1.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

2.

Company shall own all right, title and interest in and to the Customer Data[, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services]. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

3.

[Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.]No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

1.

Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

2.

Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 2.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

5. TERM AND TERMINATION

1.

CSubject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

2.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. WARRANTY AND DISCLAIMER

1.

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

1.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2.

THE COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY 3RD PARTY CUSTOMER SPEND BASED ON AND NOT LIMITED TO JUDGEMENT. ANY DISPUTES OR MISALLOCATED SPEND SHALL NOT BE RECOVERABLE THROUGH ANY INCIDENT. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, COMPANY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. THE COMPANY HAS THE RIGHT TO SETTLE ANY CLAIM OR DISPUTE.

8. MISCELLANEOUS

1.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of [New York] without regard to its conflict of laws provisions. [The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request. THE COMPANY IS NOT RESPONSIBLE FOR ANY LEGAL FEES IF SUIT IS BROUGHT AGAINST OR LEGAL ACTION IS TAKEN SET FORTH FROM THE COMPANY.]

EXHIBIT A

Service Level Terms

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than two hours, Company will credit Customer 5% of Service fees for each period of 6- or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.

AdHawk GDPR Compliance

Updated: May 19th, 2018

AdHawk Inc. complies with the EU-U.S. Privacy Shield Framework and Swiss-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union and Switzerland to the United States. AdHawk Inc. has certified to the Department of Commerce that it adheres to the Privacy Shield Principles. If third-party agents process personal data on our behalf in a manner inconsistent with the principles of either Privacy Shield framework, we remain liable unless we prove we are not responsible for the event giving rise to the damage. The controlled U.S. subsidiaries of AdHawk Inc. as identified in our self-certification submission, also adhere to the Privacy Shield Principles. If there is any conflict between the terms in this privacy policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern. To learn more about the Privacy Shield program, and to view our certification, please visit www.privacyshield.gov. If you have a question or complaint related to AdHawk Inc.’s participation in the EU-U.S. or Swiss-U.S. Privacy Shield, we encourage you to contact us via our support chat. For any complaints related to the Privacy Shield frameworks that cannot be resolved with AdHawk Inc. directly, we have chosen to cooperate with the relevant Data Protection Authority, or a panel established by the European DPAs for resolving disputes. Please contact us to be directed to the relevant DPA contacts. As further explained in the Privacy Shield Principles, binding arbitration is available to address residual complaints not resolved by other means. AdHawk Inc. is subject to the investigatory and enforcement powers of the U.S. Federal Trade Commission (FTC)

SERVICES AND SUPPORT

The user agrees that by submitting an inquiry, the user agrees to allow the company to contact the user with information and marketing material that we deem as relevant.

Customers of the Service will be using the Site to host data and information (“Data”). We will not review, share, distribute, print, or reference any such Data except as provided in the Terms of Use, or as may be required by law. Individual records may at times be viewed or accessed only for the purpose of resolving a problem, support issue, or suspected violation of the Terms of Use, or as may be required by law.

The Company may also collect certain information from visitors to and customers of the Site, such as Internet addresses. This information is logged to help diagnose technical problems, and to administer our Site in order to constantly improve the quality of the Service. We may also track and analyze non-identifying and aggregate usage and volume statistical information from our visitors and customers and provide such information to third parties.The Site contains links to other websites. We is not responsible for the privacy practices or the content of these other web sites. Customers and visitors will need to check the policy statement of these others websites to understand their policies. Customers and visitors who access a linked site may be disclosing their private information. It is the responsibility of the user to keep such information private and confidential. Our Site has security measures in place to help protect against the loss, misuse, and alteration of the Data under our control. When our Site is accessed using both server authentication and data encryption to help ensure that Data is safe, secure, and available only to you. We also implements an advanced security method based on dynamic data and encoded session identifications, and hosts the Site in a secure server environment that uses a firewall and other advanced technology to prevent interference or access from outside intruders.

This website uses the Google AdWords remarketing service to advertise on third party websites (including Google) to previous visitors to our site. It could mean that we advertise to previous visitors who haven’t completed a task on our site, for example using the contact form to make an enquiry. This could be in the form of an advertisement on the Google search results page, or a site in the Google Display Network. Third-party vendors, including Google, use cookies to serve ads based on someone’s past visits to the website. Any data collected will be used in accordance with our own privacy policy and Google’s privacy policy.

INFORMATION PROVIDED

When using the FlooringStores website, you may be asked to provide personal information about yourself, such as your name, contact information, or details about flooring solutions that you are interested in. This may occur, for example, when you submit an inquiry to a flooring professional, or complete other forms, such as a content subscriptions.

INFORMATION PROVIDED

When using the FlooringStores website, you may be asked to provide personal information about yourself, such as your name, contact information, or details about flooring solutions that you are interested in. This may occur, for example, when you submit an inquiry to a flooring professional, or complete other forms, such as a content subscriptions.

COOKIES, PIXELS AND OTHER TRACKING TECHNOLOGIES

Cookies, pixels, and other tracking technologies. We and our partners use various technologies to collect information automatically when you access and use the FlooringStores website, including cookies and other similar technologies. Cookies are bits of electronic information that can be transferred to your computer or other electronic device to uniquely identify your browser. When you use the FlooringStores website, we and our partners may place one or more cookies on your computer or other electronic device or use other technologies that provide similar functionality. We and our partners may use cookies to connect your activity on the FlooringStores website with other information we store about you in your account profile or your prior interactions on the FlooringStores website to, for example, store your preferences. The use of cookies helps us improve the quality of the services to you, by identifying information which is most interesting to you, tracking trends, measuring the effectiveness of advertising, or storing information you may want to retrieve on a regular basis. At any time, you may adjust settings on your browser to refuse cookies according to the instructions related to your browser. However, if you choose to disable cookies, many of the free features of the FlooringStores website will not operate properly.

The pages on the FlooringStores website may also include pixels, which are electronic files to count users who have visited that page, to track activity over time and across different websites, to determine users’ interactions with emails we send, to identify certain cookies on the computer or other electronic device accessing that page, or to collect other related information, and this information may be associated with your unique browser, device identifier, or Internet Protocol address. We may, for example, implement a pixel on the pages of the FlooringStores website where you view a certain advertisement so that we can track whether you visit a website associated with that advertisement at a later time.

CONTACT

Calls and text messages. Calls between you and FlooringStores, or between you and third parties made through FlooringStores (such as flooring professionals you contact through a form or link on our website, or using contact information found on our website), may be recorded or monitored for quality assurance and customer service purposes. You will be notified at the beginning of a call if it may be recorded or monitored. FlooringStores uses a third-party service provider to track phone calls and text messages between you and flooring professionals so that we and the flooring professional can access certain details about the contact. As part of this process, FlooringStores and its service provider will receive in real time and store data about your call or text message, including the date and time of the call or text message, your phone number, and the content of the text message.