Terms of Use Agreement

Welcome to FinaleInventory.com, the website, and online service of Finale, Inc. (“Finale”). This page explains the terms by which you may use our services, websites, and software provided on or in connection with the service (collectively the '"Service").

By accessing or using the Service, including by embedding our code on your equipment, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection and use of your information as set forth in Finale Inventory Privacy Policy, whether or not you are a registered user of our Service. Finale reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, Authorized Users (as defined below), and others who access the Service (“Users”).

1. USE OF OUR SERVICE

Finale provides a cloud hosted inventory management service and barcode scanner software that integrates with Windows Mobile barcode scanners.

a. Eligilbility. This is a contract between you and Finale. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Finale, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. The Service is not available to any Users previously removed from the Service by Finale.

b. Finale Accounts. The account representing the inventory management service provided to you by Finale (your “Finale Account”) gives you access to the Service and features that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users, and these different accounts may have different features available to them. If you are registering a Finale Account on behalf of a company, organization, government, or other legal entity (“Entity”), you may authorize individuals to use the Service (each, an “Authorized User”) in accordance Section 3(b) herein. Each Finale Account represents a separately administered inventory management service, such as may fit the needs of a whole Entity with one or more locations, or a business unit within an Entity, but not multiple Entities or multiple business units that have different inventory sets or Users, even if within the same Entity.

c. Administration. Each User will identify a username and password for his or her account on the Service. Your password may not be shared with any other individual; and a username may be cancelled or reassigned to a new individual replacing one who no longer requires ongoing use of the Service. You are responsible for safeguarding the password that you use to access the Service. You must notify Finale immediately of any breach of security or unauthorized use of your account. Finale cannot and will not be liable for any loss or damage arising from your failure to comply with the above. If you are accepting this Agreement and using the Service on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may control your account settings and how you interact with the Service by changing the settings in your settings page. By providing Finale your email address you consent to our using the email address to send you Service-related notices, including billing notices and any notices required by law, in lieu of communication by postal mail.

d. Publicity. If you are entering into this Agreement in association with your use of a Paid Service (as defined in Section 3 below), you grant to Finale permission to use your Entity name, logo, or identifying marks as a User of Finale’s Service in promotional or marketing material, unless your Paid Service is associated with an Enterprise Services Agreement or other agreement with Finale that includes restrictions against such publicity.

e. Service Rules. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Finale servers than a human can reasonably produce in the same period of time by using a conventional online web browser (except that Finale grants the operators of public search engines revocable permission to use spiders to copy publically available materials from FinaleInventory.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.

2. PROPRIETARY RIGHTS

a. Our Proprietary Rights. As between you and Finale, Finale and its licensors exclusively own all right, title and interest in and to the Service, including without limitation any improvements thereto based on User ideas and suggestions, general improvements, updates, and all materials therein or transferred thereby, including, without limitation, software, customizations, improvements, images, text, graphics, illustrations, logos, patents, trademarks, service marks, and copyrights (the "Finale Content"), and all Intellectual Property Rights (as defined below) related thereto and derivative works of the foregoing. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights (as defined below), and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Finale Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.

For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

b. Your Proprietary Rights. As between you and Finale, you own all right, title and interest in and to the Customer Data (as defined below) and all data and content embedded thereon or contained therein (excluding the Service), and any Intellectual Property Rights for any of the foregoing embodied therein. “Customer Data” means data or information that you upload or enter into your Finale Account. To the extent necessary for Finale to provide you with the Service, you hereby grant Finale a non-exclusive, royalty-free license to host, copy, transmit and display Customer Data, solely for the purpose of providing the Service to you in accordance with this Agreement.

3. PAID SERVICES

a. Paid Service. Subject to the terms of this Agreement, an Order Form, and payment of applicable fees stated therein, Finale grants you a non-exclusive, non-transferable, non-sublicensable right to use the “Paid Service,” solely for your internal use during the term of this Agreement. Finale reserves all rights not expressly granted herein in the Service and Finale Content (as defined below).

b. Usage Limits. The Service is subject to usage limits, for example, each subscription to the Service has entitlement to usage limits more fully described in the Pricing section of the Finale website (available at: http://www.finaleinventory.com/pricing-signup) and the Service may not be accessed in a way that exceeds the specified contractual usage limits. For purposes of the usage limitations described in an Order Form, the term “Item” means a separate part number (product ID) or serial number or lot ID. Multiple units having the same Item specification count as a single Item. For example, if you have an inventory of 10 devices with a part number XYZ, that counts as a single Item, whereas if you have an inventory of 10 devices each with its own serial number, that counts as 10 Items. If you exceed a contractual usage limit, you agree to pay overage fees calculated by the capacity used in excess of the limitation, divided by the capacity limit, times the monthly fee, for the service level, times one hundred fifty percent (150%). If you are paying annually, the monthly fee, for purposes of this Section 3(b), will be determined by dividing the annual fee by twelve (12). Overage fees are payable and due immediately for any month in which the capacity limitations have been exceeded within that month. Each subscription for the Service includes all general software enhancements and updates to the inventory management service and barcode scanner software.

c. Support. Subject to the terms hereof, except as otherwise provided in an Order Form, Finale will provide you with reasonable technical support services for the account level described in the Pricing section of the Finale website.

4. FREE SERVICES

If you receive a free or unsubscribed access subscription to the Service (“Free Service”), then you may use the Service in accordance with the terms and conditions of this Agreement for the period designated in the Order Form or otherwise by Finale. Finale may terminate or immediately suspend your Free Service at any time for any reason without liability to. You acknowledge your Free Service may not be complete or fully functional and may contain bugs, errors, omissions and other problems. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, FINALE WILL HAVE NO WARRANTY, INDEMNITY, CONFIDENTIALITY OR SUPPORT OBLIGATIONS WITH RESPECT TO FREE SERVICES.

5. PAYMENT OF FEES

a. If you subscribe to the Service, you will pay Finale the then applicable fees described in the Order Form for the Service, in accordance with the terms therein (the “Fees”). If your use of the Service exceeds the usage limit set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), you shall be billed for such usage and agree to pay the additional fees in the manner provided herein. Finale reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service Term or then current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). If you believe that Finale has billed you incorrectly, you must contact Finale no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Finale’s customer support department.

b. Finale may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Finale thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Finale’s net income.

6. PRIVACY AND SECURITY

a. You understand that by using the Service you consent to the collection, use, and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to, and processed in the United States.

b. Except as explicitly authorized in writing by this Agreement or otherwise, Finale will: (a) not use, for its own benefit or the benefit of any third party, Customer Data associated with a Paid Service; and (b) use all reasonable care, but in no event less care than it takes to protect its own Confidential Information, to protect Customer Data associated with a Paid Service from unauthorized use, disclosure and publication.

7. SECURITY

All data will be transmitted directly to Amazon Web Services (“AWS”), which shall host the Service. Finale makes no guarantees as to the availability of the Service. If you suspect that there may be or has been unauthorized access or use of any Customer Data or materials relating to the Service, you shall immediately notify us with confirmation of such notification in writing.

8. TERM AND TERMINATION

a. Term. This Agreement commences on the date you first accept it and continues until you discontinue your use of the Service.

b. Term of Subscriptions for Paid Services. The term of each subscription shall be as specified in the applicable Order Form (“Term”). Subscriptions will automatically renew for additional periods equal to the expiring subscription term unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.

c. Termination. Either party may terminate this Agreement for any reason or for no reason, by giving the other party written notice of termination. Termination of this Agreement under this Section 8(c). will be effective thirty (30) days from the date of notice.

d. Termination for Cause. Finale, in its sole discretion, may terminate or suspend your account at any time if, in Finale’s sole discretion, you violate any term or provision of this Agreement, without liability to you. If you default in the performance of any material provision of this Agreement, including without limitation any payment obligations due under Section 5, then Finale may give written notice to you that if the default is not cured within ten (10) days the Agreement will be terminated. If Finale gives such notice and the default is not cured during the ten (10) day period, then the Agreement shall automatically terminate at the end of that period. Upon termination of your account, your right to use the Service will immediately cease and all amounts due shall become immediately due and payable.

e. Refunds. If this Agreement is terminated for cause by Customer in accordance with Section 8(d). or for convenience by Company in accordance with Section 8(c), Company will refund Customer any prepaid fees covering the remainder of the Term of all Order Forms after the effective date of termination and will have no further liability for any loss or damage, direct or indirect, to Customer arising from the termination of this Agreement. If this Agreement is terminated for cause by Company in accordance with Section 8(d), or for convenience by Customer in accordance with Section 7(c), Customer will pay any unpaid fees covering the remainder of the Term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Company for the period prior to the effective date of termination.

f. Survival. Sections 2, 3 (to the extent not satisfied), 9, and 11-15 shall survive any termination or expiration of this Agreement. Upon termination of this Agreement for any reason, you shall cease all use of the Service and you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service and any the data, and shall so certify, if requested, to Finale that such actions have occurred.

g. Data Retention. Finale will make your Customer Data available for you to export from the Service for fifteen (15) business days following the effective date of the termination (“Availability Period”). Upon conclusion of the Availability Period, Finale may begin to delete your Customer Data from its systems.

9. CONFIDENTIALITY

“Confidential Information” of either party will mean information disclosed to or learned by the receiving party concerning the disclosing party’s business, customers, products, proposed products, plans, inventions, processes and techniques, which is clearly labelled as “Confidential” or “Proprietary.” Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach on the part of the receiving party; (ii) the receiving party obtains from a third party rightfully, without breach of nondisclosure obligations and without restriction on disclosure; or (iii) the disclosing party regularly provides to others without restriction on disclosure. For the avoidance of doubt, Customer Data as defined herein is not a part of Confidential Information, though the privacy and security provisions of Section 5 apply to Customer Data for Paid Services. Except as explicitly authorized in writing by this Agreement or otherwise, each party will: (a) not use, for its own benefit or the benefit of any third party, the other party's Confidential Information; and (b) use all reasonable care, but in no event less care than it takes to protect its own Confidential Information of similar importance, to protect the other party's Confidential Information from unauthorized use, disclosure and publication. Both parties acknowledge that the breach of this Section 9 could cause great or irreparable injury to the disclosing party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by the receiving party, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

The Service may contain links to third-party materials that are not owned or controlled by Finale. Finale does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your Customer Data on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and Finale’s Privacy Policy do not apply to your use of such sites. You expressly relieve Finale from any and all liability arising from your use of any third-party website, service, or content.

11. REPRESENTATIONS AND WARRANTIES

a. Corporate Authority and Compliance with Laws. Each party warrants and represents that such party has full right, power, and authority to enter into and perform this Agreement without the consent of any third party. You hereby represent, warrant, and covenant to use the Service in accordance with all applicable laws.

b. Consent to Collection and Use of Customer Data. In connection with any Customer Data, you hereby represent and warrant that (a) you have obtained all necessary rights, releases, and permissions to provide such Customer Data to Finale, and (b) the collection, use, and disclosure of such information by you does not violate any laws or rights of any third party, including without limitation any Intellectual Property Rights, rights of privacy, or rights of publicity, and is not inconsistent with the terms of any applicable privacy policies. Finale takes no responsibility and assumes no liability for any Customer Data that you or any other user or third party provides, posts, publishes or transmits over the Service. You shall be solely responsible for Customer Data and the consequences of using, disclosing, or transmitting it, and you agree that Finale is only acting as a passive conduit.

12. INDEMNITY

You agree to defend, indemnify and hold harmless Finale and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) Customer Data or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

13. NO WARRANTY

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 11, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER FINALE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. FINALE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FINALE. FINALE DOES NOT WARRANT THAT ANY CHANGES YOU MAKE TO THE CUSTOMER PROPERTIES WILL MEET YOUR EXPECTATIONS AND IS NOT RESPONSIBLE FOR ANY DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY YOUR BASED UPON USE OF THE SERVICES.

14. LIMITATION OF LIABILITY

NEITHER FINALE NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. FINALE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO FINALE UNDER THIS AGREEMENT DURING THE THEN CURRENT SUBSCRIPTION TERM.

The parties agree that the limitations specified in this Section 14 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Each party acknowledges that the foregoing limitations are an essential element of the Agreement and a reasonable allocation of risk between the parties and that in the absence of such limitations the pricing and other terms set forth in this Agreement would be substantially different.

The Service is controlled and operated from facilities in the United States. Finale makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

15. GENERAL

a. No Agency. Neither party has the ability to bind the other party to any agreements or other obligations and will not attempt to do so. Finale and you are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.

b. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Finale without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.

c. Governing Law. This Agreement shall be governed by the laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of a state court located in Santa Clara County, California or the United States District Court for the Northern District of California. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Finale, either specific or general, in jurisdictions other than California.

d. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Finale in connection with the Service, shall constitute the entire agreement between you and Finale concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.

e. California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

f. Export Restrictions. You are responsible for compliance with all applicable laws and regulations, including but not limited to United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.

g. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Finale’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

h. Revisions. We may revise this Agreement from time to time, the most current version will always be at www.finaleinventory.com/terms If in our sole discretion the revision is material, we will notify you via e-mail to the email address associated with your account and by placing a notice on the Service for the 30 days preceding the effective date of any such revision. By continuing to access or use the Service after those revisions become effective, you agree to be bound by the revised Agreement.

i. Contact. Please contact us with any questions regarding this Agreement by email: [email protected].

This Agreement was last modified on July 7, 2015.


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