Terms of use

Terms of use / Terms of Service

Updated October 20th 2021

Definitions

In this terms of service (the “Terms”), the following definitions apply:

Flourish, we, us or our means Flourish and / or the legal entity behind Flourish

Customer, you or your means the entity or person who has created an account and or signed an agreement with Flourish.

Users means any person or entity to whom you provide access to our Services, including any administrators or mangers of your account or survey respondents; and

Customer Data means any content or data that you or your Users submit or transfer to Flourish by using the Services (including personal data or survey responses);

Term, means the term of these terms of service as defined in section 7 below.

Agreement, means the signed customer agreement between you and Flourish.

These Terms and the Agreement form a contract between you and Flourish. These Terms governs your subscription to, and use of, Flourish’s website and/or other related applications services and related documentation (together, the Services).

Acknowledgement

These Terms set out the rights and obligations of all Users regarding the use of the Service.

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, Users and others who access or use the Service.

The Terms are a binding legal contract between you and Flourish. Please read the Terms carefully before using the Services. Your use of the Services means that you agree to be bound by the Terms. Do not use the Services if you do not accept the Terms.

1

Services

1.1

Flourish services

During the Term, we will provide you with access to, and use of, the Services ordered and described by the Agreement. You may order additional services at any time during the Term by contacting our Customer Success team. We will invoice you for any additional services you order after the start of the Term at the time those Services are ordered.

1.2

Changes to Services

We continually change and improve our Services. Flourish may alter the Services at any time without prior notice. We will endeavor to provide you with prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services.

1.3

Suspension of Services

We may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If Flourish limits or suspends the Services, we will endeavor to give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable and/or feasible for us to give you advance notice.

1.4

Third party Services

If you use any third-party service with the Services (for example, Slack), you acknowledge that third party service may access or use the Customer Data. Flourish will not be responsible for any act or omission of the third party, including such third party’s use of Customer Data. Flourish does not warrant or support any such third-party service, and you should contact that third party directly for any issues arising from your use of the third-party service.

2

Fees and Payments

2.1

Fees for Services

Flourish Services are billed on a subscription basis (Subscription) and you will be billed in advance on a recurring, periodic basis most commonly 12 months. The Billing Cycle for your Subscription is outlined in the Agreement.

You agree to pay Flourish any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those in the agreement.

2.2

Price changes and User increases

Flourish may change its fees for Services at any time. Any changes to fees will apply from the start of your next Billing Cycle and you will be informed prior of them. If your use of the Services during a Billing Cycle exceeds the User limit indicated in the Agreement, we may charge you for the additional Users on a pro rata basis for the remainder of that Billing Cycle.

2.3

Automatic renewal

Your Subscription for any Services will automatically renew at the end of each Billing Cycle unless you cancel the automatic renewal of that Service by providing us with written notice 1 day before the end of the billing cycle.

3

Data Protection

3.1

Privacy

In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with these Terms. For more details see our privacy policy.

3.2

Security

Flourish will store and process Customer Data in a manner consistent with industry security standards. Flourish has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data.

3.3

Disaster recovery

Flourish will maintain residual backup copies of Customer Data made in the ordinary course of business by Flourish, for the sole purpose of maintaining appropriate disaster recovery practices.

4

Confidentiality

4.1

Confidential Information definition

In these Terms, Confidential Information means any information disclosed by a party (the Discloser) to the other party (the Recipient) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:

• (a) is or becomes public through no fault of the Recipient;
• (b) the Recipient already lawfully knew;
• (c) was rightfully given to the Recipient by a third party; or
• (d) was independently developed by the Recipient without reference to the Discloser’s Confidential Information.

4.2

Confidentiality obligations

The Recipient must:

• (a) protect the Discloser’s Confidential Information using commercially reasonable efforts;
• (b) not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
• (c) only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement; and
• (d) ensure that its affiliates, employees, directors, contractors, agents and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement.

5

Intellectual Property

The Customer acknowledges and agrees that Flourish and/or its licensors own all intellectual property rights in the Services and the Flourish software. Except as expressly stated herein, these Terms does not grant the Customer any rights to, under or in, any patents, copyright, database right, design right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other intellectual property rights or licenses in, to or in respect of the Services, or the Flourish Software.

5.1

Flourish confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

5.2

Customer feedback

If you provide us with any feedback related to the Services, Flourish may use that feedback without any obligation to you.

5.2

Flourish Intellectual Property Rights

Nothing in these Terms or from your use of the Services grants you:

• (a) ownership in the Services or the content you access through the Services (other than Customer Data); and
• (b) any right to use any Flourish trade marks or other Intellectual Property Rights contained in our brand identity.

6

Customer Obligations

6.1

Legal compliance

You must use the Services in compliance with, and only as permitted by, applicable law. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Flourish has agreed with you otherwise. You must not use the Services in a way that would subject Flourish to any industry-specific regulations without obtaining Flourish’s prior written agreement (for example, the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act).

6.1

Unacceptable uses

You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:

• (a) misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
• (b) circumvent or attempt to circumvent any limitations that Flourish imposes on your account (such as any User limits in the Agreement);
• (c) probe, scan, or test the vulnerability of any Flourish system or network, unless with prior written authorization of Flourish;
• (d) decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempt to do so;
• (e) directly identify a User contrary to the terms of any Confidentiality Notice, or attempt to do so;
• (f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
• (g) engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. Flourish will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to an acceptable level to Flourish;
• (h) use the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
• (i) attempt to circumvent any license, timing or use restrictions that are built into the Services; and
• (j) unless authorized in writing by Flourish, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party.

6.3

You must:

• (a) ensure that your Users are governed by, and comply with, these Terms;
• (b) obtain any consents required from each User to allow you and the administrators or mangers of your account to engage in the activities contemplated by these Terms;
• c) obtain any consents required from each User to allow Flourish to provide the Services;
• (d) not provide any person under the age of 16 with access to the Services.

6.4

Suspension of Users

If a User breaches this Agreement or uses the Services in a manner that Flourish reasonably believes will cause Flourish liability or disrupt others’ use of the Services, then Flourish may request that you suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Flourish may suspend or close the applicable User account.

7

Term and Termination

7.1

Term

These Terms begins on the date you sign the Agreement or first use the Services (whichever is earlier), and continues until your Subscription ends or otherwise terminates, or if the Terms are terminated (the Term).

7.2

Termination without cause

Either party may terminate the Terms by providing the other party with written notice of termination 60 days prior to the expiration of the Agreement / billing cycle. Flourish may terminate these Terms for any reason by providing at least 90 days’ written notice to you.

7.3

Termination without cause

Either party may terminate the Terms by providing the other party with written notice of termination 60 days prior to the expiration of the Agreement / billing cycle. Flourish may terminate these Terms for any reason by providing at least 90 days’ written notice to you.

7.4

Termination for material decrease in functionality

If we make a change to the Services resulting in an overall material decrease in functionality of the Services, you may terminate these Terms immediately by providing notice to Flourish. Upon receiving notice of termination from you, Flourish will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of these Terms.

7.5

Consequences of Termination

• (a) If these Terms are terminated: by you due to breach by Flourish, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or
• (b) by Flourish due to breach by you, we will bill you, and you will pay, for any accrued but unbilled fees, and you will remain liable to pay any invoices outstanding on the termination date.

In no event will expiration or termination of these Terms relieve you of any fees.

8

Warranties

8.1

Warranties

Each party represents and warrants that:

• (a) it has full power and authority to enter into these Terms; and
• (b) it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.

9

Indemnities

9.1

By Customer

You will indemnify, defend, and hold harmless Flourish from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third-party claim regarding or in connection with:

• (a) Customer Data (including claims of Intellectual Property Rights infringement);
• (b) your use of the Services in breach of these Terms; or
• (c) your Users’ use of the Services in breach of these Terms.

9.2

By Flourish

Flourish will indemnify, defend, and hold you harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party. However, in no event will Flourish have any obligations or liability under this Section arising from:

• (a) use of any Services in a modified form or in combination with materials not furnished or authorized by Flourish; or
• (b) any content or data provided by you, your Users, or any third parties.

10

Disclaimers and Limitations of Liability

10.1

Disclaimers

Except as expressly provided in these Terms and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Flourish provides the services on an “as is” basis and, except as expressly provided in These Terms and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services, or regarding any Customer Data or other content associated with your account.

10.2

Limitation of liability

To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with these Terms will not exceed the total amounts paid by you to Flourish under the Agreement during the 12 months prior to the event giving rise to the liability.

11

Dispute Resolution, Governing Law and Jurisdiction

11.1

Dispute resolution

Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:

• (a) give the other party notice of the dispute and its nature;
• (b) give the other party the opportunity to remedy any breach of these Terms within 30 days; and
• (c) hold good faith negotiations with the other party to settle the disputed matter.

11.2

Governing law and jurisdiction

The Terms shall be construed in accordance with and be governed by the substantive laws of Sweden. Any dispute, controversy or claim arising out of or in connection with the Terms, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Expedited Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce The arbitral tribunal shall be composed of a sole arbitrator. The seat of arbitration shall be Stockholm and the language to be used in the arbitral proceedings shall be English. All awards may, if necessary, be enforced by any court having jurisdiction in the same manner as a judgement in such court. All arbitral proceedings shall be strictly confidential and all information, documentation, materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings.

12

Other Terms

12.1

Force majeure

Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or general internet disturbance) that was beyond the party’s reasonable control.

12.2

Notices

All notices must be in writing and will be deemed given when:

• (a) verified by written receipt, if sent by postal mail with verification of receipt service or courier;
• (b) received, if sent by mail without verification of receipt; or
• (c) when verified by automated receipt or electronic logs if sent by email.

Notices to Flourish must be sent to Jumx Tech AB, Vera Sandbergs allé 5B, 411 33 Göteborg or to marten@flourish.se. Notices to you may be sent to the email address associated with the Customer Contact details in the Agreement. You must keep the contact details associated with your account current and accurate by notifying Flourish’s Customer Success team when your contact details change. You may grant approvals, permission, extensions, and consents by email.

12.3

Severability

If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from these Terms and the remaining terms will remain in full effect.