User License Agreement

FrontRunner Professional – User License Agreement
Amended – July 25, 2015

h3. INTRODUCTION

Please read this USER LICENSE AGREEMENT (“Agreement”) carefully and make sure that you fully understand it. You will have the opportunity to accept or reject the terms of this Agreement during the installation process. You may not activate or use any of the FrontRunner Solutions, herein after called “SOFTWARE”, unless you agree to the terms of this Agreement during the activation process. If you accept the terms of this Agreement and activate the SOFTWARE, you effectively become the USER. The SOFTWARE is a proprietary product of FrontRunner Professional Inc. (“FRP”). It is protected by copyright law and international treaty. Any loading, use, or operation of the SOFTWARE, other than as specifically permitted herein, is unauthorized and in violation of applicable copyright law and international treaty. For purposes of this agreement, SOFTWARE refers to the web based system and associated media (whether DVD, web-based or otherwise), printed materials, provided content, including online and electronic documentation, and all accompanying items. This Agreement may be modified from time to time by FRP at our sole discretion. Upon such modification, the modified agreement will be posted at all times within the Support Help Desk of the SOFTWARE for the USERS to review. Upon any modification to this Agreement, the USERS continued use of the SOFTWARE shall be governed by the modified Agreement and shall be deemed to be an acceptance of the modified Agreement, which for all purposes set forth herein shall be deemed the Agreement. If for any reason the USER does not agree to be bound by any of the modifications, the USER may not continue to use the SOFTWARE or the associated business programs and services affiliated with it.

1. SHARED REVENUE PROGRAMS
The USER will be provided with a number of Shared Revenue Programs which the USER may use. These shared revenue programs include, but are not limited to Memorial Candles, Heartfelt Sympathies Flower Ordering, Heart-in- Diamond, Sympathy Cards, and Sympathy Store. Your percentage of all revenues generated through your system will be placed in the respective Shared Revenue account for each program. Balances can be viewed at all times in your system. FRP reserves the right to debit any Shared Revenue Account for any amounts owing to or billed by FRP for services, including but not limited to hosting fees, support fees, additional service work, domain renewals and upgrades. The entire program is designed to allow clients to fund aggressive online strategies through these newfound revenues without having to spend from their general account.

2. LIMITATION OF USE OF THE SOFTWARE
The USER is authorized to only use the SOFTWARE for its intended purpose in the ordinary course of business solely for the benefit of the USER. The USER is not permitted to translate, disassemble, reverse, compile, or make derivative works of the SOFTWARE, nor may the USER modify or alter any portion of the SOFTWARE, including developing new functionality to the SOFTWARE. The USER shall not post, transmit, re-transmit or store material on or through any of the services or products, which in FRP’s sole judgment is (i) in violation of any local, provincial, state or federal law or regulation, (ii) threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity (collectively, “Persons”) or (iii) violating the rights of any person, including real or potential infringement rights protected by copyright, trademark, trade secret, patent or other intellectual property or similar laws or regulations. The USER shall not upload any scripts into their hosting space or use the SOFTWARE for any unsolicited emailing or spam activities. The USER acknowledges that any unauthorized use of the SOFTWARE causing any disruption to the function of the web servers or breaches of security will result in a breach of this Agreement and may result in the immediate termination thereof. The USER may access and use the SOFTWARE from any computer at any location where there is an Internet connection. Where multiple user access is granted under the license, multiple individuals may log into the SOFTWARE simultaneously from multiple locations.

3. INTELLECTUAL PROPERTY RIGHTS
All title and intellectual property rights in and to the SOFTWARE (including but not limited to any images, content, photographs, animations, video, audio, music, text and applets, incorporated into the SOFTWARE), the accompanying printed materials, are owned or licensed by FRP. The SOFTWARE is licensed, not sold. In the event of any cancelation of use of the software, any copying or electronic scrape of any data, content, graphics or any other copyright or trademark materials by the USER or the USER’s agent into any newly transferred website will constitute theft and will be governed by strict legal enforcement. All title and intellectual property rights associated with the content that is not contained in the SOFTWARE but may be accessed through use of the SOFTWARE, is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. Use of any online services which may be accessed through the SOFTWARE may be governed by the respective terms of use relating to such services.

4. PASSWORD AND SECURITY
FRP shall provide an initial password and account designation for the USER. It is recommended that a USER change the initial password the first time the SOFTWARE is accessed and monthly thereafter. The USER is solely responsible for maintaining the confidentiality of the USER passwords and accounts, and is fully responsible for all activities occurring under the USER passwords or accounts. The USER agrees to notify FRP immediately if they notice unauthorized use of their password or account or any other breach of security. FRP cannot and will not be liable for any damage or loss arising from a USER’s failure to comply with this section.

5. EQUIPMENT FOR YOUR USE
The USER shall be responsible for obtaining and maintaining all telephones, computer hardware, Internet access points and other equipment needed for access to and use of the SOFTWARE and for any/all charges related thereto.

6. SUPPORT
Basic support as provided with the SOFTWARE at no-charge and includes access to an online User Manual / Videos and the ability to contact FRP via email if the SOFTWARE is malfunctioning. Basic support also includes assisting a USER via e-mail or other electronic means with information on how to use the SOFTWARE. In the event that the USER cannot find the answer to a question through the Support Help Desk options, the USER may submit an email support request detailing the problem. Email support is checked frequently throughout the day however, FRP reserves the right to respond to support e-mails within a 48 hour period during regular business hours. Regular business hours are Monday – Friday, 8am to 5pm EST. Should the USER require support via phone, a fee of $45 per incident during business hours and $65 per incident after hours will be automatically charged against the USER’S portion of their Shared Revenue accounts.

7. TRAINING
Each System include a no-charge 2 day training session for up to (2) staff at the Technology Center located at 6A Clarence Street Kingston Ontario Canada. Additional One-on-one over the phone training can be purchased for an additional fee as well as training sessions at the FrontRunner Training Center located at 6A Clarence Street Kingston Ontario Canada.

8. CONTENT CONTROL
All content and graphics provided by FRP as part of the website and SOFTWARE shall remain the property of FRP and may not be reproduced or copied. All custom USER Content input by the USER and stored on FRP server computers shall at all times remain the property of the USER. All content submitted by the public will remain the property of the individual submitting and will be strictly protected against any unauthorized access or use by any FRP personnel or other agent without the express written consent of the author other than outside the normal course of server administration by the authorized server administrator. The USER will only use the SOFTWARE and services for lawful purposes and the USER will not store or provide any content, graphics, images or user content, or link to any material that violates foreign, federal, state or local law, or is deemed generally offensive. Should FRP become aware that the USER has violated this section, FRP may, at our option, remove the content, graphics, images or user content in violation and immediately terminate this Agreement. If hosting is terminated, FRP, at its sole discretion, may reinstate hosting upon adequate showing of the USER’s right to use the content, graphics, images or user content. All content on the USER’s website must be legally obtained and not in violation of copyright law. This includes content transferred by FRP from USER’s existing website to the new FRP website, as well as all website content that is subsequently added by USER. If USER is unsure if content on their previous website is copyrighted, USER should contact their previous website provider prior to transferring their content. FRP will not be held responsible for legal and/or financial charges resulting from a copyright infringement.

9. OTHER CONTENT OR SERVICES
Through the USER’s use of the SOFTWARE, the USER may receive content or services provided through, or in connection with, individuals or entities other than FRP including, without limitation, data, links, articles, graphic or video messages, photographs, text, software, music, sound, graphics or other materials or services (collectively, the “Other Content or Services”). The USER understands and agrees that they will not obtain, as a result of the use of the SOFTWARE, any right, title or interest in or to such Other Content or Services delivered via the SOFTWARE or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets or other rights) in and to such Other Content or Services. FRP hereby expressly disclaims any liability for any such Other Content or Services, including but not limited to any errors or omissions in any such Other Content or Services, or for loss or damage or injury of any kind incurred as a result of the use of any such Other Content or Services posted, transmitted, advertised or otherwise made available to the USER through or in connection with the SOFTWARE.

10. MODIFICATIONS TO THE SOFTWARE
FRP reserves the right at any time to disable, enable, modify, or discontinue, temporarily or permanently, any features or functions of the SOFTWARE, with or without notice, obligation or liability to the USER or to any third party.

11. UPGRADES
FRP will continue to add new applications and features to the SOFTWARE to help ensure the USER always has the most advanced offerings on the market. Under the new Pulse Business System, all upgrades to the SOFTWARE will be at no-charge to the USER. In some cases however, new features or applications, products will be at an additional cost.

12. HOSTING / LICENSING FEES
FRP will provide dedicated server computers with an Internet address for storage and access of content, USER content, and the web based SOFTWARE, equivalent with best practices and reasonable commercial standards. FRP will employ best efforts in providing advance notice to USERs of scheduled server computer/network outages. Hosting fees will be billed annually or quarterly at the USER option. Hosting / Licensing fees will be subject to change. FrontRunner reserves the right to debit the USER’s shared revenue accounts for any outstanding monies owed.

13. ADDITIONAL HOSTING FEES
The USER acknowledges that a number of National and Regional Marketing Business Systems added by the USER will require additional Hosting and Listings Fees over and above their normal system hosting fee.

14. MANAGED DOMAIN HOSTING
All domain names purchased through or switched to FRP will be registered to and owned by the USER. In consideration of the domain names purchased for the USER by FRP, the USER agrees to pay FRP at the time service is provided. The minimum period for the registration of a domain name will be one year. When the USER registers or transfers a domain name, the domain name(s) will be automatically renewed for an additional year unless FRP is previously advised of a change within 60 days of the renewal period. If for any reason FRP is not able to take the payment from the USER, and the USER fails to respond to our notices, the domain name registration will be allowed to expire. It is the USER’s responsibility to keep their contact information current, along with payment method information and the expiration date if using a credit card.

15. EMAIL POLICY
FRP does not host or provide an email service but suggests the use of Google’s email solutions. This is done to ensure peace of mind and maximum privacy to the USER and alleviates any concerns about emails being seen by FRP. Any fees incurred by the USER with regards to their Google accounts will be paid to Google directly. FRP does provide an initial account set-up service that will come at a cost to the USER. Any software set-up for mail clients such as Outlook, Thunderbird, etc. or any mobile mail clients are the sole responsibility of the USER.

16. DATA BACK-UP
FRP will back-up the SOFTWARE content and records in a commercially reasonable manner on a daily basis. FRP will not be responsible for lost content or lost User content. FRP will provide, at the USER’s expense, an electronic copy of the backup content and records in a CSV file format upon written request. Standard back-ups are intended for disaster recovery, not the restoration of individual files. As with any software, traditional or web based, client data files can be accidently deleted by USERs and may require re-input by USERs in these situations.

17. RECORD SCRAPES
If the USER requests a record scrape from their old management system or website, FRP will, for a fee, make every effort to accurately bring over the existing data. The USER understands and acknowledges that from time to time, other companies will rearrange or modify a USER’s data to make it difficult, if not impossible, for FRP to successfully capture all information. As such, we request that the USER attempt to provide FRP with a clean, CSV-formatted file. The USER agrees to save FRP harmless if the data integrity and accuracy of the scraped records are not successfully reflected in the USER’s new SOFTWARE. The USER further acknowledges that it is their responsibility to verify the records are correct and that the cost of the record scrape will still become due and payable even if the process is unsuccessful.

18. CONTENT SCRAPES
The USER understands and acknowledges that FRP will make every effort to bring content over from the client’s existing website but cannot guarantee its accuracy unless provided in a digital Microsoft Word Document provided to us by the client. Additionally, the USER agrees to save FRP harmless from any litigation resulting from the transfer of any copyright protected copy or images that have been used on their existing site, or that the client adds to their new website at any time in the future.

19. PAYMENT PLANS
The USER opting to use the payment option agrees to pay FRP the current published rate at the time of signing this Agreement. At the end of the payment option period, the USER will continue to pay a monthly fee for hosting / licensing of the SOFTWARE according to the terms and conditions published at the time of signing. The USER and FRP acknowledge that the monthly fee for hosting / licensing may be subject to change over time. The USER agrees that in the event of cancellation by either party prior the complete payment option period, the full amount of the remaining SOFTWARE price will become payable immediately. The USER also agrees to allow any revenue generated funds from the SOFTWARE to first go towards any outstanding balances owed to FRP.

20. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Under no circumstances, including negligence, will FRP be liable to the USER or anyone else for any indirect, special, incidental, punitive, exemplary or consequential damages (including damages that arise from loss of anticipated revenue, loss of information or material of any kind, loss of profits, loss of business and injury to property, even if FRP have been advised of the possibility of such damages) that arise in connection with or as a result of USER’s use or inability to use the SOFTWARE or liability with hosted domains. These include but are not limited to the USER’s reliance on any materials, content, information, websites, software or products obtained on the website, or mistakes, omissions, interruptions, communications failures, deletion of files or emails, errors, defects, viruses, Trojan horses, delays in operation or transmission, or any failure of performance, or theft, destruction or unauthorized access to your records, programs or websites. Some states and provinces do not allow the exclusion or limitation of liability for consequential or incidental damages and in such states and provinces, FRP’s liability is limited to the greatest extent permitted by law.

21. TERMINATION
FRP reserves the right to discontinue any Internet-based services provided to the USER or made available to the USER through the use of or in connection with the SOFTWARE if the USER does not abide by the terms and conditions of this Agreement or should any relevant remunerations, purchasing commitments and/or payments not be made by the USER to FRP. Furthermore, FRP reserves the right to terminate services to any USER that engages in any unnecessary, rude and abusive behavior with any FRP staff during the time of FRP’s attempts to assist the USER. This Agreement may be terminated by the non-defaulting party if a party fails to perform or comply with this Agreement or any provision hereof. Either party may terminate this Agreement for convenience at any time upon the giving of thirty (30) days written notice.

22. SERVICE CANCELLATION
The USER may cancel the SOFTWARE by sending an e-mail to cancellation@FrontRunner360.com to request discontinuance of the SOFTWARE. The USER will be required to sign the SERVICE CANCELLATION AGREEMENT, which will be provided by FRP. The USER will also cease the use of and destroy all materials including graphics and content obtained from the SOFTWARE or from FRP. The USER is encouraged to review all of the legal requirements surrounding the cancellation of their system, as it may seriously impact existing families’ usage, which could result in legal action against the USER by the family. The USER acknowledges that the FRP system is much more than a website; it is highly interactive SOFTWARE that allows by-the-minute interactivity with families, the public and the communities the USER serves depending on features selected. The USER will remain liable for all outstanding payments and fees due at the time of cancellation. The USER further agrees that the USER’s domain and data cannot be transferred until all outstanding fees and liability sign-off is forwarded to FRP via registered mail.

23. MISCELLANEOUS
This Agreement will be governed by and construed under the laws of the Province of Ontario Canada without reference to its choice of law principles. The USER consents to the jurisdiction and venue of the courts of the Province of Ontario Canada.

24. ACCEPTANCE
By selecting the “I ACCEPT” button (On-Line User License Agreement), the USER hereby agrees to all terms contained within. Following acceptance, the button will no longer appear, indicating that the USER accepted this Agreement during activation.

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