Terms of Service

Revised: November 14, 2018

Terms of Use

Welcome to FinaleInventory.com, the website, and online service of Finale, Inc. (“Finale,” “we,” or “us”). This page explains the terms by which you may use our online and/or mobile services, websites, APIs, SDKs, email notifications, and Software (as defined below) 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 the 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, and others who access the Service (“Users”).

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. TO THE EXTENT THAT FINALE PROCESSES ANY PERSONAL DATA THAT IS SUBJECT TO THE GENERAL DATA PROTECTION REGULATION (THE “GDPR”), AS A PART OF THE CUSTOMER DATA, ON CUSTOMER’S BEHALF, IN THE PROVISION OF THE SERVICE HEREUNDER AND CUSTOMER AGREES TO EMAIL US AT [email protected] TO REQUEST A DATA PROTECTION ADDENDUM, THE TERMS OF WHICH SHALL HEREBY BE INCORPORATED BY REFERENCE INTO THIS AGREEMENT.

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.  Eligibility. 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, are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. (including without limitation all applicable laws regarding online conduct and acceptable content, the transmission of technical data exported from the United States or the country in which you reside, privacy, and data protection). Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Finale.

b.  Finale Accounts. In order to use certain features of the Service, you must register for an account with Finale (a “Finale Account”). Your Finale Account gives you access to the functionality  and features of the Service 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. For example, we offer 1) a free version account (“Free Account”), and 2) several types of paid accounts (each a “Paid Account”).  If you access the Service using a Free Account, then you may use the Service in accordance with the terms and conditions of this Agreement for the period designated in the ordering document or online order that specifies the features of the Service to be provided hereunder to you, including any addenda and supplements thereto (each, an “Order Form”) , or as otherwise allowed by Finale. Finale may terminate or immediately suspend your Free Account at any time for any reason without liability to you. You acknowledge that your access to the Service through a Free Account 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 THE PROVISION OF THE SERVICE TO HOLDERS OF FREE ACCOUNTS.

Certain account types may allow you to authorize additional accounts for other Users and associate those authorized Users under your account. Users may  identify a username and password for their account on the Service. A User’s password may not be shared with any other individual; however, 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 and the Users authorized by 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, then: (i) “you” includes both you and the entity you represent, as applicable; and (b) you represent and warrant that you are authorized to bind the entity to this Agreement. 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. 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. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. You agree that Finale may collect, use and disclose your personal data for providing marketing material that you have agreed to receive, in accordance with our Privacy Policy. If you do not want to receive such email messages, you may opt out or change your preferences in your user settings page within your account on the Service. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

c.  Finale Services. Subject to your compliance with the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable license to internally use and access the Service solely as necessary to manage your inventory in accordance with the documentation or specifications included in the Service. Finale reserves all rights not expressly granted herein in the Service.

d.  Finale Software. Use of any software and associated documentation that is made available via the Service (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the website page where the Software can be accessed. You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. At no time will Finale provide you with any tangible copy of our Software. Finale shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by this Agreement. Subject to your compliance with this Agreement, Finale grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Service in the manner permitted by this Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.

e.  Publicity. If you are entering into this Agreement in association with your use of a Paid Service, 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 Account is associated with a Master Services Agreement or other agreement with Finale that includes restrictions against such publicity

f.  Usage Limits. Users with a Free Account shall be able to use the Service on a time-limited basis. Regardless of whether you have a Free Account or Paid Account, we may limit: (i) the number of Users that can access the Service; (ii) the maximum number of orders per month, (iii) the number of integrations, (iv) the number of locations, (v) the maximum number of inventory items (each, an “Item”, and (vi) the number of daily API calls, as well as anything else about the Service as we deem appropriate, in our sole discretion, including but not limited to the specific capabilities of the Service and level of support for the Service, as more fully set forth in the description of our subscription tiers for the Service available at: https://www.finaleinventory.com/pricing-signup. For purposes of the usage limitations the term “Item” means a separate part number (product ID), 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. Unless otherwise set forth in writing, if you exceed a contractual usage limit, your subscription level will automatically be upgraded to the next plan level, in each case as more fully set forth at https://www.finaleinventory.com/pricing-signup. You agree to pay any invoice for excess usage in accordance with the excess usage schedule made available at https://www.finaleinventory.com/pricing-signup. Any added quantities will terminate on the same date as the underlying subscriptions.

We may impose or modify these limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the Service by a User after any usage limitations are exceeded or suspend your access to the Service with or without notice to you in the event you exceed any such limitations.

g.  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 publicly available materials from the Service 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.

h.  General Representations and Warranties. You represent and warrant that (i) your use of our Service will be in strict accordance with this Agreement, the Data Addendum (as applicable), and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States (or the country in which you reside) and (ii) your use of the Service will not infringe or misappropriate the intellectual property rights of any third party.

2.  STOREFRONTS AND INTEGRATIONS 

a.  Customer-Facing Storefront Policy. You are solely responsible and liable for your customer-facing storefront(s), whether online or offline (“Storefronts”), and for supporting the Storefronts. On each Storefront in which you use the Service, you shall prominently display and comply with a privacy policy on such Storefront that includes a full, accurate and clear disclosure regarding Finale’s collection, use and distribution of personal information collected via the Service in accordance with our Privacy Policy. You represent and warrant that your Storefront will not: (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, text messages, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vii) offer or promote services that may be damaging to, disparaging of, or otherwise detrimental to Finale or its licensors, licensees, affiliates and partners.

b.  Integrations. You may integrate certain third party services, products, software or other applications (like selling platforms or accounting systems) (collectively, “Third Party Services”) to provide additional sales and/or inventory-related support for your Storefront(s). By connecting to Finale with any Third Party Services, you give us permission to access and use your information from those Third Party Service as permitted by those Third Party Services, and to store your credentials for those Third Party Services. If you integrate any Third Party Services into your instance of the Service, you understand that:

i.Third Party Services are not vetted, endorsed, or controlled by Finale.

ii.  Any use of any Third Party Services is at your own risk, and we shall not be responsible or liable to anyone for Third Party Service.

iii.  Your use of any Third Party Services is solely between you and the respective third party (“Third Party”) and will be governed by the Third Party’s terms and policies. It is your responsibility to review the Third Party’s terms and policies before using any Third Party Services.

iv.  Some Third Party Services may request or require access to your (yours, your visitors’, or customers’) data. If you use the Service to associate your account with any Third Party Services, your data will handled in accordance with the respective Third Party’s privacy policy and practices. We do not have control over how any Third Party Services may use your data. You should carefully review Third Party Services’ data collection, retention, and use policies and practices before enabling Third Party Services.

v.  Third Party Services may not work appropriately with your website, and we may not be able to provide support for issues caused by any Third Party Services.

vi.  If you have questions or concerns about how a Third Party Service operates, or need support, please contact the Third Party directly.

vii. In rare cases, we may at our discretion, suspend, disable, or remove Third Party Services from your account or website.

c.  Refusal of Storefronts and/or Integrations. Finale will have the right, in its sole discretion, to refuse to permit your use of the Service with a particular Storefront and/or Integration. Unless Finale states otherwise, such rejection will not terminate this Agreement with respect to any other Storefronts or Integrations. Finale will have no liability to you for such refusal.

d.  Monitoring. You agree to provide us with access to your Storefront and other materials related to your use of the Service, including your use of the Service in association with any Integrations, as reasonably requested by us to verify your compliance with this Agreement.

3.  OWNERSHIP

a. Ownership. 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.

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 software, customizations, improvements, images, text, graphics, illustrations, logos, updates and all materials therein or transferred thereby (including any content originated on the Service by other Users) (the “Finale Content“), and all Intellectual Property Rights related thereto and derivative works of the foregoing. Except as expressly set forth in Section 1(c) (Finale Services) above, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, 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 the Service or any Finale Content 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. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement. We claim no ownership or control over your Storefronts, the Third Party Services integrated therein, or the content sent, posted or displayed through your Storefronts, except for any aspects of the Service therein (“User Content”).  To the extent necessary for Finale to provide you with  and improve the Service, you hereby grant Finale a non-exclusive, royalty-free license to host, copy, transmit and display User Content as described in our Privacy Policy.

b.  Feedback. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service (“Ideas”). By submitting any Ideas, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Finale under any fiduciary or other obligation, and that we are free to use the Ideas without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Finale does not waive any rights to use similar or related ideas previously known to Finale, or developed by its employees, or obtained from sources other than you.

4.  PAYMENT OF FEES

a.  Payment. You agree to pay all fees or charges to your Finale Account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable. Unless otherwise agreed to by Finale in writing, Users must provide Finale with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs use of the designated credit card account, and must refer to that agreement and not the terms of this Agreement to determine its rights and responsibilities. By providing Finale with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your account for all fees and charges due and payable to Finale hereunder and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Service or by e-mail delivery to you. In certain circumstances 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 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. 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 at [email protected]

b.  Pricing and Taxes. Please refer to our pricing page https://www.finaleinventory.com/pricing-signup for a description of the fees payable in connection with the Service. Finale’s fees are net of any applicable taxes, including but not limited to sales and use taxes, VAT, and any additional taxes other than U.S. taxes based on the net income, property tax or payroll taxes of Finale (“Taxes”), and whether these Taxes are imposed directly on you or on Finale. If your receipt of access to the Service, under this Agreement is subject to Taxes in any jurisdiction and you have not remitted the applicable Taxes to Finale, you will be responsible for the payment of such Taxes and any related penalties or interest to the relevant tax authority.

5.  RELATIONSHIP OF THE PARTIES

The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the parties. Neither party is the representative of the other party for any purpose and neither party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. You acknowledge and agree that Finale may be independently creating applications, content and services that may be similar to or competitive with your products or services, and nothing in this Agreement will be construed as restricting or preventing Finale from creating and fully exploiting such applications, content and other items, without any obligation to you.

6.  PRIVACY

With regard to the privacy of our Users and the visitors to our Users’ Storefronts (“Customer”), you understand that by using the Service you consent to the collection, use, and disclosure of the personally identifiable information contained in User Content and our processing of the personal data contained in your User Content about your Customers (End User Content) as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to, and processed in the United States. You further agree to obtain and maintain any required consents necessary to permit the processing of any data you provide to us under this Agreement, including but not limited to any data that either on its own or in combination with other data could reasonably identify an individual.

Pursuant to sub-section 2(a) Customer-Facing Storefront Policy above, you are required to notify your Customers of your use of our Service on your Storefronts.

Here’s a snippet you can use to communicate to your Customers that you share their personal data with Finale. This is required by GDPR if you have any Customers based in the EUs. Please feel free to modify it to fit the way you present things.

Also Note: This is not intended to provide legal advice. We recommend you consult your own legal counsel to check that whatever you add to your policy documents matches your needs.

We use Finale Inventory, as a third-party inventory management service, but we only share with them information about you that is required for the service offered. We also contractually bind them to keep any information we share with them confidential and to process your personal data only according to our instructions.

 

To learn about about how we use Finale Inventory  to manage our inventory, please read their privacy policy: https://www.finaleinventory.com/privacy-policy.

 

7.  SECURITY

Finale takes commercially reasonable precautions including technical, organizational and physical measures to help safeguard against the accidental or unlawful destruction, loss, alteration and unauthorized disclosure of, or access to, the personal information we process. Since posting our specific security measures online could provide the type of information hackers use, this description is intentionally generalized.  If your organization requires further detail on our security practices, please reach out to us at [email protected].

 

While Finale implements industry standard security measures that take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your data for improper purposes. You acknowledge that you provide your data to us at your own risk.  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 your Finale Account or any User Content or materials relating to the Service, please contact us immediately at [email protected].

8. TERM AND TERMINATION

a.  Term. This Agreement commences on the date you first accept it and continues through your initial subscription period (the “Initial Term”). Subscriptions will automatically renew for additional periods equal to the Initial Term (each, a “Renewal Term”) unless either party gives the other notice of non-renewal at least 30 days before the end of the Initial Term or Renewal Term, as applicable.

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

c.  Refunds. The subscribed-for fees are non-refundable. In the event of termination, Customer agrees to 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.

d.  Survival. Sections 1(g), 3, 4 (to the extent not satisfied), 5, 9(d), 9(e), and 11-16 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.

e.  Data Retention. Finale will make your User Content 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 User Content 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 non-disclosure obligations and without restriction on disclosure; or (iii) the disclosing party regularly provides to others without restriction on disclosure. For the avoidance of doubt, non-public features of the Service are considered Company’s Confidential Information. 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.

10.  THIRD-PARTY LINKS AND INFORMATION

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 User Content 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 this Agreement and all applicable laws.

b.  Consent to Collection and Use of User Content. In connection with any User Content, you hereby represent and warrant that (a) you have obtained all necessary rights, releases, and permissions to provide such User Content 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 User Content that you or any other user or third party provides, posts, publishes or transmits over the Service. You shall be solely responsible for User Content 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) User Content 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 WARRANTIES EXPLICITLY STATED IN SECTION 11, THE SERVICE IS 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 IS NOT RESPONSIBLE FOR ANY DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY YOU BASED UPON YOUR USE OF THE SERVICE.

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.  GOVERNING LAW, ARBITRATION, AND JURY TRIAL WAIVER

a.  Governing Law. 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 us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). 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 the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

b.  Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM FINALE. For any dispute with FINALE, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Finale has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Finale agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Finale from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

c.  Jury Trial Waiver. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND FINALE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.

16.  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.  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 Jury Trial Waiver, the entire arbitration agreement shall be unenforceable

d.  California Residents. The provider of Service 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.

e.  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.

f.  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

g.  Notification Procedures and Changes to the Agreement. Finale may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Finale in our sole discretion. Finale reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Finale is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Finale may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘Revised’ date at the top of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, you agree to notify Finale and to immediately discontinue your use of or access (or continued access) to the Service. Notwithstanding anything to the contrary herein, in the event you elect to terminate your subscription to the Service pursuant to a change in our Terms of Use, Finale will refund to you any prepaid, but unused fees as of the effective date of your termination; provided however, that Finale receive your notice of intent to terminate pursuant to this Section 16(h) within thirty (30) days of our provision of notice to you with regard to any change to this Agreement.

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