Your use of FTOPIA’s software, services and web sites is subject to the terms of a legal agreement (“Agreement”) between you and FTOPIA. “FTOPIA” means FTOPIA SAS, whose principal place of business is at 44 rue Cauchy, 94110 Arcueil, France, or any its subsidiaries and affiliated companies.
You agree to be bound by the terms and conditions of the Agreement (i) by clicking the “I Agree” button for this agreement or accepting any modification to this agreement in accordance with section 2 below, or (ii) by actually using the services provided by FTOPIA. In this case, you understand and agree that FTOPIA will treat your use of its services as an acceptance of the Agreement from that point onwards.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND YOU MAY NOT USE THE SERVICES.
1. The Services
The services covered by this Agreement include both free services that FTOPIA and its affiliates (referred to together herein as “we” or “us”) make available for no fee (the “Free Services”), and services that we make available for a fee (the “Paid Services”). The Free Services and the Paid Services are referred to collectively in this Agreement as the “Services.” Each Free Service and Paid Service is referred to individually as a “Service.”
1.1. Free Services. The Free Services include the web services that we make available to you free of charge on the Web sites accessible from ftopia.net (collectively, the “FTOPIA Website”) when you subscribe to an FTOPIA free plan.
1.2. Paid Services. The Paid Services include all web services and any related software, programming interfaces, documentation and support services that we may make available to you for a fee on the FTOPIA Website.
2. Modifications to this Agreement
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the FTOPIA Website. The revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting).
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the FTOPIA Website pages regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.
3. Term, Termination and Suspension
3.2. Termination by You for Convenience. You may terminate this Agreement for any reason or no reason at all, at your convenience, by clicking on the Account link in the navigation bar of your FTOPIA Website. The Account screen provides a simple no questions asked cancellation link. You are solely responsible for properly canceling your account. An email or phone request to cancel your account is not considered cancellation.
3.3. Termination by Us Other Than for Cause.
3.3.1. Free Services. If you are only using Free Services, we may terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time, immediately upon notice to you in accordance with the notice provisions set forth in Section 13 below.
3.3.2. Paid Services. We may terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you thirty (30) days’ advance notice in accordance with the notice provisions set forth in Section 13 below.
3.4. Termination by Us for Cause. We terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
3.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 13 below if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or the Amazon Properties poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (v) you use any of the Marks (as defined in Section 4.5) other than as expressly permitted herein; (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using FTOPIA Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (vii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (viii) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
3.4.2. Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 13 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15 day period.
3.4.3. Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 13 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 day period.
3.5. Effect of Termination. Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) all of your Content will be immediately deleted from the FTOPIA Website; this information can not be recovered once the Agreement is terminated; and (iv) you shall immediately return or destroy all FTOPIA Confidential Information (as defined in Section 7 below) then in your possession.
3.6. Survival. In the event this Agreement is terminated for any reason, Sections 3.5, 3.6, 4.2, 4.4, 6, and 7 through 14 will survive any such termination.
4. Authorization and License to Use the Services
Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service detail page on the FTOPIA Website (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
4.1. Permitted Uses Generally.
4.1.1. You may use the Services to store, retrieve and serve data and/or content owned, licensed or lawfully obtained by you (all of the foregoing, to the extent actually stored on FTOPIA, “Content”). You acknowledge that neither we nor our licensors are responsible in any manner, and you are solely responsible, for your Content. While we may track information regarding your use of the Services, we will not sell or license your Content, and will not disclose your Content except as we may determine to be necessary or desirable to comply with the Agreement, the request of a governmental or regulatory body, subpoenas or court orders, or for other legal purposes.
4.1.2. You may write a software application, a widget or a Web site (“Applications”) that interfaces with the Services. You acknowledge that we may change, deprecate or republish APIs (as defined in Section 4.4 below) for any Service or feature of a Service from time to time, and that it is your responsibility to ensure that calls you make to any Service are compatible with then-current APIs for the Service. You further acknowledge that we may change or remove features or functionality of the Services at any time.
4.1.3. You may make network calls or requests to the Services at any time that the Services are available, provided that you (or if you build and release an Application, each installed copy of your Application) may not exceed the maximum file storage space or maximum bandwidth usage set forth in your then-current service plan.
4.2. Restricted Uses Generally.
4.2.1. You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.
4.2.2. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services or on the FTOPIA Website.
4.2.3. Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.
4.2.4. The FTOPIA servers are hosted in the European Union and in the United States and as such are subject to all applicable laws of the United States, the European Union and other applicable local laws. Certain services are prohibited, and you may not use an FTOPIA account to operate a service that:
• Constitutes, promotes, facilitates, or permits gambling.
• Includes, promotes or facilitates child pornography or other illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Distributes, shares, or facilitates the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code (collectively, “Harmful Components”).
• Violates, misappropriates, or infringes the rights of any third party.
• Constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms, or other data that is subject to export laws.
4.3. Accounts and passwords. When you complete the account creation process, you will be issued a unique account identifier and password pair (“Account Credentials”). The Account Credentials are associated with only one individual user (“Account Owner”). The Account Owner is enabled to access and administrate your FTOPIA Website, including the management of additional users. You can change the Account Owner but there is only one Account Owner for your FTOPIA Website at any point in time.
You agree to maintain the Account Credentials in strict confidence and not to provide them to any third party. You will promptly notify us upon the loss or compromise of the Account Credentials and you will be solely responsible for all actions, loss of data, failure to access the Services and fees incurred as a result of such use of the Account Credentials. Any unauthorized use of the Account Credentials by you will constitute a material breach of this Agreement.
4.4. FTOPIA Tools and Applications. We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the “FTOPIA Tools”).
4.4.1. Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights in the FTOPIA Tools, only to install, copy and use the FTOPIA Tools solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement. The FTOPIA Tools may include, without limitation:
Articles and documentation for use in connection with the use and implementation of the APIs (collectively, “Documentation”);
Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and other technology;
Various executable programs, including file system extensions that enable the integration of local local files and folders with the Services;
Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video.
4.4.2. You agree to provide information and/or other materials related to your Applications as reasonably requested by us to verify your compliance with this Agreement. You further acknowledge and agree that we may monitor the interfaces of your Application with the Services for the purpose of verifying your compliance with this Agreement. You may not seek to block or otherwise interfere with such crawling or monitoring (and we may use technical means to overcome any methods used on your Application to block or interfere with our crawling or monitoring); and, you agree to furnish a copy of your Application upon request for the purpose of verifying your compliance with this Agreement.
4.4.3. You must comply with the terms of the FTOPIA Developer Guide, as posted by us and updated by us from time to time on the FTOPIA Website, including, without limitation, any limitations described in the FTOPIA Developer Guide on the number and/or the total size of files that may be stored on the FTOPIA servers at any one time.
4.4.4. Provided that you comply with the terms of this Agreement and our policies and procedures for the use of the Services, you may develop, use and distribute Applications owned or lawfully obtained by you. You are solely responsible for your Applications, including any data, text, images or content uploaded or downloaded through them.
4.4.5. While we may track information regarding your usage of the Services, we will not disclose, sell or license your Applications that use the Services or content or data contained therein, except as: (i) you expressly authorize us to do in connection with your participation in other services that may be offered by us; or (ii) we may determine to be necessary or desirable to comply with the Agreement, the request of a governmental or regulatory body, subpoenas or court orders, or for other legal purposes.
4.4.6. You are personally responsible for all Applications accessing the Services. As such, you should protect your authentication credentials. Actions taken using your credentials shall be deemed to be actions taken by you.
4.5. Restrictions with Respect to Use of Marks. Your use of any trademarks, service marks, service or trade names, logos, and other designations of FTOPIA and its parent company, syster companies, affiliates, and/or licensors, hereinafter “Marks”, shall strictly comply with the following provisions. You may use the Marks in conjunction with the display of the FTOPIA Content and for the purpose of indicating that your Application was created using the Services. You may use the Marks only in the form in which we make them available to you and not in any manner that disparages FTOPIA, its parent company, its sister companies, its affiliates or its licensors, or that otherwise dilutes any Mark. Other than your limited right to use the Marks as provided in this Agreement, we and our licensors retain all right, title, and interest in and to the Marks. You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name or other business identifier of FTOPIA or its parent company, sister companies, affiliates or licensors unless you obtain FTOPIA’s and any applicable third party’s prior written consent. The foregoing prohibition includes the use of “ftopia” any other trademark of FTOPIA, its parent company, its sister companies or its affiliates, or variations or misspellings of any of them, in the name of an Application or in a URL to the left of the top-level domain name (e.g., ”.com”, ”.net”, “co.uk”, etc.)—for example, a URL such as “ftopia.mydomain.com”, “ftopai.net” or “ftopiazone.net” are expressly prohibited. Any use you make of the Marks shall inure to our benefit and you hereby irrevocably assign to us all right, title and interest in the same. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
5. Downtime and Service Suspensions; Security
5.1. Downtime and Service Suspensions. In addition to our rights to terminate Services to you as described in Section 3 above, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 9.6, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 13 below and to post updates on the FTOPIA Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
5.2. Security. We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.3 above and Section 9.6 below, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, and (b) routinely archive Your Content. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content.
6.1. Service Fees. In consideration of your use of any of the Paid Services, you agree to pay applicable fees set forth on the Sign Up and Pricing and your Account page on the FTOPIA Website. Fees for any new Service or new Service feature will be effective upon posting by us on the FTOPIA Website for the applicable service plan. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously Free Service or Free Service feature, by giving you 30 days’ advance notice. Such notice will be posted on the FTOPIA Website on the Service detail page for the affected Service. You agree that you are responsible for checking the FTOPIA Website each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number.
6.2. Payment. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
6.3. Refunds. Paid subscription fees are non-refundable. The Services are billed in advance on a monthly basis and are non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
7.1. Use and Disclosure. You shall not disclose FTOPIA Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “FTOPIA Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. FTOPIA Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 7.2 or any information that you are required to disclose by law.
7.2. Excluded Information. Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 7.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
Use of Certain Information. In the course of using the Services, you may provide to FTOPIA certain information, including, but not limited to, contact and technical information (the “Information”). You agree that FTOPIA may use the Information in connection with its provision of the Services. If you purchased the Services as a result of the marketing efforts of an FTOPIA marketing partner, you agrees that FTOPIA may disclose the Information to such marketing partner. Notwithstanding the foregoing, FTOPIA will not provide any Information to any third party without your authorization and will use reasonable efforts to prohibit any third party that receives any such Information from selling or redistributing such Information without your authorization.
7.3. Conflict with Separate Non-Disclosure Agreement. If you and we are parties to a separate non-disclosure agreement (“Stand-Alone NDA”) and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 7, the terms of the Stand-Alone NDA shall control.
8. Intellectual Property
8.1. Our Services, Marks and Software. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Marks; and (iii) any other technology and software (“Software”) that we provide or use to provide the Services. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Marks, or the Software (including third party technology and software), except for the limited use and access rights described in this Agreement. You acknowledge that the Software contains proprietary information and trade secrets of FTOPIA. You will not take any actions inconsistent with FTOPIA’s ownership of each of FTOPIA’s rights in and to the Software. You agree that you will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by FTOPIA. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
8.2. Your Applications and Content. Other than the rights and interests expressly set forth in this Agreement, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to your Applications and your Content.
8.3. Feedback. In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services (“Feedback”), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.
8.4. Non-Assertion. During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
9. Representations and Warranties; Disclaimers; Limitations of Liability
9.1. Use of the Services. You represent and warrant that you will not use the Services, Amazon Properties and/or your Application and Your Content: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; (iii) to send, store or make available material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs ; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
9.2. Applications and Content. You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of your Application and for your Content; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your Application and your Content; (iii) that neither your Application nor your Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither your Application nor your Content contains any Harmful Components; and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of FTOPIA.
9.3. Authorization and Account Information. You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking “I Agree” on this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
9.4. Disclaimers. THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. WE AND OUR AFFILIATES, DISTRIBUTORS AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.5. Links. The FTOPIA Website, the FTOPIA Tools and/or the Services may contain links to websites that are not under our control (“Third Party Sites”). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
9.6. Limitations of Liability. NEITHER WE NOR ANY OF OUR AFFILIATES, DISTRIBUTORS AND LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
10.1. General. You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, (ii) your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your Application and/or your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
10.2. Notification. We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
11. Export Controls
11.2. Export Compliance and Restrictions. You shall, in connection with your use of the Services, comply with all applicable export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, the EU Dual-Use Regulation, and other applicable export control laws and regulations.
12.1. Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of FTOPIA’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the FTOPIA Website or to the Services shall be adjudicated by the Tribunal of Commerce of Paris, France, and you consent to exclusive jurisdiction and venue in such courts.
12.2. Governing Law. By using the Services, you agree that the laws of France, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us.
13.1. To You. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of amended Agreements, updated fees, etc.) will be posted on the FTOPIA Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
13.2. To Us. For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact FTOPIA as follows:
notice at ftopia dot net
M44 rue Cauchy
13.3. Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
14. Miscellaneous Provisions
14.1. Third Party Activities. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
14.2. Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
14.3. Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
14.4. Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
14.5. Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the FTOPIA Website and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
14.6. No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or your Content.
14.7. Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates). You do not have any right, power, or authority to act as our legal representative.