FloodSearch Terms of Service
This Terms of Service Agreement (the "Agreement") is entered into by and between FloodSearch, LLC, ("FS") and You (the "Customer"), the party agreeing to these terms using the FloodSearch Application, websites associated with the FloodSearch Application, and any other application servers associated with the FloodSearch Applications (the "Service"), including user-oriented documentation ("Documentation") provided within the Service; ("Parties") refers to both FS and Customer. This Agreement is effective as of the date you click the "Submit" button found on the Service registration page. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don't have the legal authority to bind your employer or the applicable entity, please do not click the "Submit" button. This Agreement governs Customer access to and use of the Service.
In entering this Agreement the Parties make the following recitals:
a. The Service provides flood zone information (a "Determination") and may provide flood insurance information (a "Quote").
b. A Determination shall be used for information purposes only and should not be relied upon as a conditional fact for real estate contracts of any type. A Quote is an estimate of the cost of a flood insurance policy and therefore shall not be used as a conditional fact for disclosures, transactions, or faith estimates of any type.
c. Customer desires to establish a user account ("Account") and obtain a Determination, and may desire to obtain a Quote.
Therefore, for and in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Parties agree to the terms as set forth below.
Customer shall pay to FS a limited use fee to obtain (1) unit of access allowance (a "Request Token") for each Determination requested. The fee amount includes all sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Service hereunder, freight, insurance, installation charges, and import/export duties. Customer agrees that all use of the Service and the fees required to obtain Service shall be governed by this Agreement.
FS shall deliver (1) Determination per (1) Request Token paid by Customer. If Service is unable to render Determination, Token will not be drawn from Account.
Customer warrants that FS is the rightful owner of all intellectual property comprising the Service. To the extent that the Service includes intellectual property of another, FS warrants to Customer that it has obtained all necessary authority to include that intellectual property in the Service. FS warrants to Customer that the Service, when properly installed and used in conjunction with approved computer equipment, will perform substantially as described in FS's then-current Documentation for such Software. FS shall have no warranty obligations with respect to any failures of the Service which are the result of accident, abuse, or misapplication.
Customer's sole and exclusive remedy for FS's breach of this warranty shall be, at FS's option, either (a) refund of the price paid for any unused Request Token (b) repair or replacement of the non-compliant Service. FS shall use all reasonable commercial efforts to complete such refund, repair, or replacement within sixty days of receiving written notice from Customer of the non-compliant Service. Any replacement Software will be warranted for the remainder of the original warranty period or thirty days, whichever is longer.
The warranties set forth above, are in lieu of, and this Agreement expressly excludes, all other warranties, express or implied, oral or written, including but not limited to: (a) any warranty that the Service is error-free or compatible with all equipment and software configurations, (b) any and all warranties of merchantability, and (c) any and all warranties of fitness for a particular purpose.
Except as set forth in this Agreement, FS will not be liable for any damages whatsoever, including but not limited to: any present or future loss of property, insurance proceeds, profits, business, use of data, interruption of business, or for direct, indirect, special, incidental or consequential damages of any kind, even if FS has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. The parties acknowledge that the limitations set forth in this section are integral to the amount of consideration levied in connection with the initial licensing of the Service and its subsequent use and that, were FS to assume any further liability other than as set forth, such consideration would of necessity be set substantially higher. This section shall survive the termination of this Agreement.
5. Miscellaneous Terms
5.1 Data Security & Privacy
FS reserves all rights to make changes to and update the Service, as FS may, from time to time, develop additional versions of the Service to increase functionality, increase ease of use, expand platform support, or otherwise enhance the performance or marketability of the Service. FS may (but is not obligated to) offer such versions to Customer on terms as the parties may then agree.
FS reserves all rights to serve ads within the Service without prior authorization of Customer.
FS will have no obligation to retain any archived Customer data beyond a period of 365 days from (1) the date the last Request Token was used or (2) the Customer fails to adhere to the conditions set forth in the Agreement.
5.5 Force Majeure
Neither party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries.
Customer will have no right to assign this Agreement except upon the prior written consent of FS. Contemporaneous with any such assignment, the assignee must, in writing, affirm its intention to be bound by the terms of this Agreement.
All notices, requests, demands, payments, and other communications made pursuant to this Agreement will be in writing and will be deemed properly given if hand delivered, if sent by mail, or overnight courier service, or by fax or similar service to the parties to this Agreement either at the address set forth below for such person or at such other address as such person may from time to time specify by written notice. Any such notice will be deemed to have been delivered on the date of delivery if hand delivered, upon confirmation if faxed or similar service, or as of three days after depositing such notice with the United States postal service if sent by mail or as of one day if delivered to an overnight courier service and will be delivered with postage prepaid, return receipt requested, and properly addressed as follows:
1820 Preston Park Blvd, Suite 1100
Plano, TX 75093
5.8 Entire Agreement
This Agreement expressly incorporates the terms of the Licensed Application End User License Agreement ("Standard EULA"). To the extent that any terms in this Agreement contradict any terms of the Standard EULA, the terms of this Agreement shall be binding. This Agreement and the terms incorporated and contemplated within this Agreement constitute the entire agreement between FS and Customer and supersede any and all prior agreements between the parties, either written or oral, with respect to the transactions contemplated within this Agreement.
FS reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof.
Any waiver of the terms and conditions of this Agreement must be in writing and signed by all the parties to this Agreement and any such waiver will not be construed as a waiver of any other terms and conditions of this Agreement. A waiver by either party as to any particular breach will not constitute or be considered as a waiver of any similar or other breach or default thereafter.
If any provision of this Agreement is found to be illegal, invalid, or unenforceable under present or future laws, the provision will be fully severable and the remaining provisions will remain in full force and effect. Any provision of this Agreement held illegal, invalid, or unenforceable will remain in full force and effect to the extent not so held. In lieu of the provision held illegal, invalid, or unenforceable, there will be automatically added as part of this Agreement a provision as similar in its terms to such invalid provision as may be possible and may be legal, valid, and enforceable.
5.12 Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to the principles of conflicts of laws of the State of Texas. Any lawsuit arising out of this Agreement shall be brought in a competent state or federal court in or for Collin County, Texas.
FS shall indemnify, defend, and hold Customer harmless from and against any claims, actions, or demands alleging that the Service infringes any patent, copyright, trademark, or other intellectual property right of a third party. If use of any or all of the Service is permanently enjoined for any reason, FS, at its sole discretion, may (a) modify the Service so as to avoid infringement without the loss of functionality, (b) procure the right for Customer to continue to use the Service, or (c) terminate this Agreement and refund to Customer any unused Request Token fees paid. FS shall have no obligation under this section for or with respect to claims, actions or demands alleging infringement that arise as a result of (a) the combination of non-infringing items supplied by FS with any items not supplied by FS, unless prior approved by FS, (b) modification of the Service by Customer, unless prior approved by FS, or (c) continued allegedly infringing activity by Customer after Customer has been notified of possible infringement, unless approved in advance by FS. This section shall survive the termination of this Agreement.
7. Unauthorized Use
Customer will use commercially reasonable efforts to prevent unauthorized use of the Services' and to terminate any unauthorized use. Customer will promptly notify FS of any unauthorized use of, or access to, the Services of which it becomes aware.
8. Restrictions on Use
Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party; (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for high risk activities; or (e) use the Services to store or transfer any data that is controlled for export under export control laws. Customer is solely responsible for any applicable compliance with HIPAA.
9. Termination of Customer Access to Service
If FS becomes aware of Customer's violation of the Agreement, FS may suspend or terminate Customer's access to the Account.
10. Legal Compliance
Customer warrants that (1) he/she is 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 (2) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
By clicking "Submit" on the Service registration page, You give your consent to the terms and conditions of this Agreement.