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Posted: December 15, 2014

Effective: December 15, 2014

The following terms and conditions (the “Agreement”) govern all use of the www.Fract.com website (the “Site”), the “Fract Service” and any Fract mobile application (taken together, the “Service”).  The Service is owned and operated by Fract, Inc. (“Fract”).  The Service is offered subject to your (and the entity or company you represent) (the “User”) acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on the Service by Fract.  BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AND THE ENTITY AND COMPANY YOU REPRESENT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN; IF YOU DO NOT AGREE, DO NOT USE OR ACCESS THE SERVICE. 

Fract reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement at any time.  It is User’s responsibility to check this Agreement periodically for changes.  User’s continued use of the Service following the posting of any changes to this Agreement constitutes acceptance of those changes.  Notwithstanding the foregoing, if User is an organization that is a for-fee registered user of the Fract Service (“Business Customer”), User will be subject to (i) the master software-as-a-service agreement executed by User and Fract, or (ii) if no such agreement is in place, the terms and conditions of this Agreement in existence at the beginning of User’s then-current subscription period.

For clarity, as used in this Agreement, “User” means all Business Customers – and each of their employees and other personnel authorized to use the Service.

  1. SCOPE.

The Service is a platform which analyzes your product and locations to predict and prevent business failure.  Subject to the terms and conditions of this Agreement, User shall have a non-exclusive, non-transferrable, non-sublicensable to access the Service solely for the purposes for which the Service is provided.  This license is personal to User and User will not use the Service for any direct commercial purpose (such as selling access to the Service or selling any data generated from using the Service).

  1. ACCESS.

Fract may change, suspend or discontinue any aspect of the Service at any time.  Fract may also impose limits on certain features and services or restrict User’s access to parts or all of the Service without notice or liability.  With respect to Business Customers, material changes that adversely affect Business Customer will be effected beginning with the User’s next subscription period (unless such changes are reasonable necessesary, as determined by Fract, to prevent harm to Fract or its systems).

The Service is available only to individuals who are at least 18 years old.  You represent and warranty that if you are an individual, you are at least 18 years old.  User also certifies that User takes full responsibility for the selection and use of the the Service.  This Agreement is void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.

User shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Service, including, without limitation, modems, hardware, software, and long distance or local telephone service.  User shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service.

  1. SITE CONTENT. 

User agrees that all content and materials (collectively, “Content”) delivered via the Service or otherwise made available by Fract at the Service are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.  Except as expressly authorized by Fract in writing, User agrees not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content.  However, User may print or download a reasonable number of copies of the materials or content at this Service for User’s own informational purposes; provided, that User retain all copyright and other proprietary notices contained therein.  Reproducing, copying or distributing any content, materials or design elements on the Service for any other purpose is strictly prohibited without the express prior written permission of Fract.  

Use of Content for any purpose not expressly permitted in this Agreement is prohibited.  Any rights not expressly granted herein are reserved.

  1. USE OF THE FRACT SERVICE.

User represents and warrants (i) User’s use of the Fract Service will comply with all laws and regulations, (ii) no data or other information it submits to the Fract Service (“User Data”) will infringe or otherwise violate any third party intellectual property rights or any laws or regulations, and (iii) User’s use of the Fract Service will not conflict with any obligations User has to any third party. Fract is hereby granted a non-exclusive, worldwide, perpetual, royalty-free, transferable right to use, reproduce and display such User Data as reasonably necessary to provide User with the Fract Service.  Fract reserves the right to remove any User Data from the Fract Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Data), or for no reason at all.  

  1. FEES.

Fract charges Business Customers – as set forth in our FAQ (“Fees”).  All Fees are charged on a subscription basis (“Subscription”).  Fract reserves the right to change the Fees and to institute new charges and Fees at the end of each Subscription period (“Subscription Period”).  Unless otherwise set forth at FAQ or agreed to by the parties in writing, all Fees will be invoiced in advance.  

Fract uses a third-party payment processor (the “Payment Processor”) to bill Business Customer through a payment account linked to Business Customer’s Subscription to the Service (“Billing Account”). Business Customer shall pay all amounts due under this Agreement, through the Payment Processor. Business Customer authorizes Fract, through the Payment Processor, to charge Business Customer’s chosen payment provider (“Payment Method”). Fract reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. The terms of Business Customer’s payment will be based on its Payment Method and may be determined by agreements between Business Customer and the payment provider of the chosen Payment Method.

Unless Business Customer opts out of auto-renewal, which must be done through Business Customer’s Service account settings at least fifteen (15) days before the then-current Subscription Period ends, all Subscriptions will be automatically extended for successive periods of one (1) year. If Business Customer terminates a Subscription, Business Customer may use the Subscription until the end of the then-current Subscription Period. Business Customer’s continued use of a Subscription constitutes confirmation that Fract is authorized to charge Business Customer’s Payment Method for that Subscription.

FRACT MAY SUBMIT RECURRING CHARGES (E.G., YEARLY) WITHOUT FURTHER AUTHORIZATION FROM BUSINESS CUSTOMER, UNTIL BUSINESS CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY FRACT) THAT BUSINESS CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE THE PERIOD OF TIME THAT IS FIVE (5) BUSINESS DAYS AFTER FRACT’S RECEIPT OF SUCH NOTICE. TO TERMINATE BUSINESS CUSTOMER’S SUBSCRIPTION(S) OR CHANGE BUSINESS CUSTOMER’S PAYMENT METHOD, GO TO BUSINESS CUSTOMER’S ACCOUNT SETTINGS PAGE.

Business Customer shall provide current, complete and accurate information for its Billing Account. Business Customer must promptly update all information to keep its Billing Account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and Business Customer must promptly notify Fract and its Payment Processor if the Payment Method is canceled or if Business Customer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of Business Customer’s user name or password. Changes to Business Customer’s Billing Account can be made at Business Customer’s Service account settings. If Business Customer fails to provide any of the foregoing information, Business Customer agrees that Fract may continue charging for any use of Subscriptions under the Billing Account.

Fract has the right to verify Business Customer’s Payment Method prior to the end of a Subscription Period. If Business Customer’s Payment Method is no longer valid or rejected, Fract shall notify Business Customer and Business Customer shall update its Billing Account and Payment Method at least thirty (30) days before the end of a Subscription Period; Business Customer’s failure to comply with the foregoing shall result in the immediate termination of the applicable Subscription. Business Customer may reinstate such terminated Subscription at Fract’s sole discretion subject to additional fees.

Any free trial or other promotion that provides access to a Subscription must be used within the specified time of the trial. Upon expiration of the free trial, Fract may terminate/suspend the Subscription until Business Customer purchases a for-fee Subscription.

As between the parties, Business Customer is responsible for withholding, filing, paying and reporting all taxes, duties, and other governmental assessments associated with its activity in connection with the Service.

Unpaid Fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all costs and expenses of collection.  

Please check our FAQ regularly for updates/changes to any Fees or payment methods.  

  1. RESTRICTIONS.

User shall not submit any information to the Service that is false, misleading or inaccurate.

User shall not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service.  Fract reserves the right to bar any such activity.

User shall not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Fract server, or to any of the services offered on or through the Service, by hacking, password “mining”, or any other illegitimate means.

User shall not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service.  User shall not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Service, or any other customer of Fract, including any Fract account not owned by User, to its source, or exploit the Service or any service or information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than User’s own information, as provided for by the Service.

User shall not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or Fract’s systems or networks, or any systems or networks connected to the Service or to Fract.

User shall not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person’s use of the Service.

User shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal User sends to Fract on or through the Service.  User shall not, in connection with the Service, pretend (e.g. through impersonation) that User is any other individual or entity.

User shall not use the Service for any purpose that is unlawful or prohibited by this Agreement, or which infringes the rights of Fract or others.

  1. THIRD PARTY SITES.

The Service may permit User to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site.  These other websites are not under Fract’s control, and User acknowledges that Fract is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources.  The inclusion of any such link does not imply endorsement by Fract.  User further acknowledge and agrees that Fract shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods, information, or services available on or through any such website or resource.

  1. INDEMNIFICATION.  

User is responsible for all of its activity in connection with the Service. User shall defend, indemnify, and hold harmless Fract and each of its employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or in connection with User’s (i) use or misuse of the Service; (ii) access to any part of the Service, (iii) use of any data or other information provided by or through the Service, (iv) interactions with any other Service users, (v) User Data or (vi) violation of this Agreement.   

  1. BUSINESS CUSTOMER RESPONSIBILITY,

Business Customer will be fully liable and responsible, including with respect to indemnity obligations, for all acts or omissions of any of its personnel Users.  For clarity, acts and omissions by any such personnel Users shall be deemed the acts and omissions of Business Customer for all purposes of this Agreement.

  1. WARRANTY DISCLAIMER.

THE SERVICE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  FRACT MAKES NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET USER’S REQUIREMENTS.  IN ADDITION, FRACT MAKES NO WARRANTIES WITH RESPECT TO: (I) THE DATA, METRICS AND OTHER INFORMATION REPORTED, GENERATED OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE SERVICE, OR (II) THE EFFECT OR USING SUCH DATA, METRICS OR OTHER INFORMATION. USER RELIES ON ALL SUCH DATA, METRICS AND OTHER INFORMATION AT USER’S OWN RISK. FOR CLARITY, FRACT MAKES NO WARRANTIES THAT THE SERVICE WILL INCREASE USER’S BUSINESS OR PROFITS OR COMPETITIVE ADVANTAGE IN ANY MANNER.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES.  IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU INSOFAR AS THEY RELATE TO IMPLIED WARRANTIES.

  1. LIMITATION OF LIABILITY.

IN NO EVENT SHALL FRACT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICE (OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICE): (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OR PROFITS OR REVENUE), EVEN IF FORESEEABLE, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR ANY ERRORS OR OMISSIONS IN ANY DATA OR OTHER INFORMATION OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER’S USE OF ANY DATA, METRICS OR OTHER INFORMATION REPORTED, GENERATED OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE SERVICE, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $500.00 (U.S.) (PROVIDED THAT, IF USER IS PAYING FOR THE FRACT SERVICE, SUCH AMOUNTS SHALL BE EQUAL TO THE FEES PAID BY USER TO FRACT DURING THE THEN-CURRENT SUBSCRIPTION PERIOD).  

THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

  1. TERM; TERMINATION. 

Fract may terminate User’s access to all or any part of the Service at any time, with or without cause, effective upon notice thereof to User; provided that, if User is a Business Customer such termination will take place on five (5) days’ notice with an opportunity to cure within such period (provided further that, if Fract determines there may be an immediate threat to Fract, it may terminate such access without notice).  In addition, Fract may immediately suspend the Service in the event User breaches this Agreement or otherwise takes and action that Fract determines (in its discretion) may harm Fract or the Service.  Upon termination or suspension, User will no longer access (or attempt to access) the Service.  All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers and limitations of liability. 

  1. EXPORT AND TRADE CONTROLS.

User agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Service or any information provided on or through the Service except in full compliance with all United States, foreign and other applicable laws and regulations.

  1. PRIVACY.

Fract’s current Privacy Policy applies to User’s use of the Service – and is incorporated by this reference.  Fract strongly recommends that you review the Privacy Policy closely.

  1. ELECTRONIC COMMUNICATIONS.

When User visits the Service or sends e-mails to Fract, User is communicating with Fract electronically.  User hereby consents to receive communications from Fract electronically.  Fract will communicate with User by e-mail or by posting notices on the Service.  User agrees that all agreements, notices, disclosures and other communications that Fract provides to User electronically satisfy any legal requirement that such communications be in writing.

  1. MISCELLANEOUS. 

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Fract shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Fract’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Fract’s prior written consent.  Fract may transfer, assign or delegate this Agreement and its rights and obligations without consent.  This Agreement shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction and venue of the state and Federal courts located in San Francisco, California.  Notwithstanding the foregoing sentence, (but without limiting either party’s right to seek injunctive or other equitable relief immediately, at any time, in any court of competent jurisdiction), any disputes arising with respect to this Agreement shall be settled by arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”).  The arbitrator shall be selected by joint agreement of the parties.  In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute.  The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court.   The arbitrationproceeding shall take place in San Francisco, California, using the English language.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Fract in any respect whatsoever.