FSS WINDOW PRO™ TERMS OF USE

CONTRACTUAL RELATIONSHIP: Cereus Holdings, LLC, a Texas limited liability company (“Cereus”), provides a mobile phone application called FSS WINDOW PRO (“WP”) that enables you to use your phone to aid in measuring windows for the purpose of custom manufacturing window treatments or obtaining custom manufacturing services. These Terms of Use (“Terms”) govern your access or use of WP and any related content or services (collectively, the “Services,” as defined below) by Cereus and its subsidiaries, representatives, affiliates, officers, managers, members and directors (collectively, the “Cereus Group”). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND Cereus. 

By accessing or using WP or the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use WP or the Services. These Terms expressly supersede prior agreements or arrangements with you regarding the use of WP or the Services. 

THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND CEREUS CAN BE BROUGHT. PLEASE REVIEW THE ARBITRATION AGREEMENT BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH CEREUS ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS AGREEMENT.

Cereus may make changes to these Terms from time to time. If Cereus makes changes, it will provide you with written notice of such changes, such as by sending an email providing a notice through WP, or updating the date at the top of these Terms. Unless Cereus states otherwise in its notice, the amended Terms will be effective immediately and your continued access to and use of WP and the Services after Cereus provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using WP and the Services.

WP’s collection and use of personal information in connection with WP and the Services is described in WP’s Privacy Notice as shown below.

ARBITRATION AGREEMENT

Governing Law; Arbitration: These Terms shall be governed by and construed in accordance with the internal laws of the State of Texas. All disputes, controversies or differences (the "Dispute") which may arise out of, in relation to, or in connection with these Terms, unless settled by mutual consultation in good faith, be submitted to a mediation proceeding to be held in Houston, Texas within thirty (30) days from the date the Dispute first arises. In the event the parties cannot mutually agree upon a mediator, the parties can jointly or unilaterally request the American Arbitration Association ("AAA") to appoint a mediator. If the dispute is not resolved by mutual agreement within sixty (60) days from the day the Dispute first arose, the Dispute shall be finally settled under the rules and procedures of the AAA then in effect, such arbitration to be conducted in Houston, Texas. In the event the parties cannot mutually agree upon an arbitrator, the parties can jointly or unilaterally request the AAA to appoint an arbitrator The arbitrator shall only interpret and apply the Terms and shall not change any Terms thereof or deprive any party of any right or remedy expressly or implicitly provided for in this Agreement. Any arbitration award rendered shall be final and binding upon the parties hereto. Judgment upon any arbitration award rendered pursuant hereto may be entered in any court of competent jurisdiction or application may be made to such court for judicial recognition of the award or an order of enforcement, as the case may be. 

1.2 Class Action: By agreeing to these Terms, you agree that you are required to resolve any claims that you may have against Cereus on an individual bass in arbitration as set forth in this Section 1, and not as a class, collective, coordinated, consolidated, mass and/or representative action. This will preclude you from bringing any class, collective, coordinated, consolidated, mass and/or representative action against any member of the Cereus Group, and also preclude you from participating in or recovering relief in any current or future class, collective coordinated, consolidated, mass and/or representative action brought against the Cereus Group by someone else. Thus, you agree that the arbitrator shall not conduct any form of class, collective, coordinated, consolidated, mass and/or representative arbitration, nor joint coordinate or consolidate claims of multiple individuals against the Cereus Group in a single proceeding.

ACCESS AND USE OF WP AND THE SERVICES

In order to use most aspects of the WP and the Services, you must register for and maintain an active user account (“Account”).  You must be at least 18 years of age to obtain an account. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times.  You agree that your username and password may only be used by you, and that you will not share your username and password with other potential users.  If you are opening an Account for another person, you must certify that you have the legal authority to make decisions on behalf of such other person and you must use a unique username for that person. By agreeing to these terms and use of WP, you agree to give Cereus permission to contact you by email for any account related issues or information.

Cereus may immediately terminate these Terms, your use of WP, or any Services with respect to you, or generally cease offering or deny access to WP or the Services or any portion thereof, including the data and photographs collected as a result of your use of WP or the Services, at any time for any reason, including, but not limited to, your failure to pay any subscription fees for use of WP or your failure to comply with these Terms.

You are aware and acknowledge that your access to WP and the Services depends on third party products and services such as internet access, which cannot be guaranteed by Cereus. Cereus shall not be liable for any deficiencies in your internet connections, network, or hardware that prevent or limit your use of WP or the Services.

You must not (and must not permit any third party to), directly or indirectly: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, or rent WP or the Services; (b) copy WP or the Services onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of WP or  the Services, or otherwise attempt to discover any source code, object code or underlying structure, ideas, know-how, algorithms or other operational mechanisms of WP or the Services, in each case, unless expressly permitted by mandatory law; (d) modify, adapt, translate or create derivative works based on all or any part of  WP or the Services; (e) modify any proprietary rights notices that appear in the WP or the Services or components thereof; (f) use WP or the Services in violation of any applicable laws and regulations or outside of the scope of the rights granted under this clause; or (g) use WP or the Services to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware; or (ii) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of third-party systems, or the services or data contained therein; (iv) gain unauthorized access to the Services or Cereus’s systems or networks; or (v) perform, or engage any third party to perform, penetration testing, vulnerability assessments or other security assessments.

WP and the Services may be subject to export and/or re-export control laws and regulations of the European Union, the United States of America, or similar laws applicable in other jurisdictions. You warrant that (a) you are not located in any country to which the European Union and/or the United States of America have embargoed goods or have otherwise applied any economic sanctions, and (b) you are (i) not a denied party under any applicable export and/or re-export laws and regulations of the European Union, the United States of America, or similar laws applicable in other jurisdictions, or (ii) otherwise listed on any European Union and/or United States of America government list of prohibited or restricted parties.

You must not export or re-export, directly or indirectly, WP or the Services or data relating thereto in breach of any applicable laws and regulations. In particular, you must comply with any sanctions imposed by the European Union and the United States of America, in each case, insofar as this does not result in a violation of or a conflict with mandatory laws, in particular with respect to anti-boycott statutes that may be applicable to you. You must, at your own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.

Cereus may monitor your use of the Services and may prohibit and/or suspend any use of the Services that it believes may be in violation of this Section 2.

PAYMENT AND CANCELLATION

3.1 Use of WP or the Services may result in charges to you for use of WP or the Services you receive from WP.  In the event that you elect subscription-based Services, you will be enrolled in our auto-renewal program and will be automatically billed monthly through the Apple App Store or the Google Store.  Cereus will give you thirty days’ notice of any increase in subscription fees for WP or the Services.    

3.2 If you decide to cancel the Services, you will lose all data and access to the app and reports once you unsubscribe.  Should you cancel during a monthly subscription period, you will not receive a refund for the remaining portion of the subscription term and you will immediately lose access to your data.  You may cancel your subscription by following this link, or by going to your profile in the app and clicking on “delete and unsubscribe.”    

3.3 If you believe a correction should be made to any charge you incurred, you must let Cereus known in writing within 30 days after the charge took place or Cereus will have no further responsibility and you waive your right to later dispute the amounts charged and shall remain liable for payment.

NOTICE

Cereus may give notice on or through WP or the Services, confirmed electronic mail to the email address associated with your Account, or by telephone or text message to any phone number provided in connection with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or at the time of sending (if sent by email, telephone, or on or through WP or the Services). You may give notice to Cereus, with such notice deemed given when received by Cereus, at any time by confirmed electronic mail to support@fssapp.com.

ASSIGNMENT

You may not assign these Terms without Cereus’s prior written approval. Cereus may assign these Terms without your Consent. Any purported assignment by you in violation of this Section 5 shall be void. No joint venture, partnership, independent contractor, employment, or agency relationship exists between you, Cereus or any Third-Party provider as a result of this Agreement or use of WP or the Services.

PRIVACY, DATA ACCESS, AND CONFIDENTIALITY POLICY

WP is designed to comply with existing and proposed federal and international standards for the privacy and confidentiality of personal information. The database and software components are structured to provide that maintenance and routine troubleshooting occur with no access to your personal information. A security system helps protect against unauthorized access or misuse by authorized users.

Disclosure: Cereus does not disclose or provide access to any personal information or data to anyone without your permission, unless ordered to do so by a court of law or governmental agency having jurisdiction or otherwise required by law.

Cookies:  To aid Cereus to better serve you and to better facilitate the use of WP, WP may place a small file known as a “cookie” to be accessed by your device during subsequent uses of WP in order to personalize your use of WP.  You do not have to accept our cookies and you may set your device to restrict their use and you may delete them after they have been placed on your device. If you do not accept or delete our cookies, your use of WP may not be optimized.

Access to Data:  Although WP has been designed to maintain window dimensions produced by your use of WP for an indefinite period of time, and to maintain photographs of windows taken by you for 36 months, Cereus does not guarantee the availability of any data or photographs related to windows or window treatments collected or produced by WP.  Any direct requests to Cereus for data of photographs by you may be denied.

Links to Third Party Sites: Cereus may contain advertising or links to other Internet sites ("Linked Sites"). Advertisements or links are strictly for informational purposes, and the appropriateness or suitability of the products or services advertised or the links provided is not guaranteed by Cereus. The Linked Sites are most likely not under the control of Cereus, and Cereus is not responsible for the content of any Linked Site that it does not control, including and without limitation to any link contained in a Linked Site, or any changes or updates to a Linked Site. Cereus is not responsible for webcasting or any other form of transmission received from any Linked Site. Cereus provides advertising and links as a convenience, and the inclusion of any advertising or link does not imply endorsement of the advertiser or any linked site by Cereus or any association with their operators.

DISCLAIMERS: LIMITATION OF LIABILITY; INDEMNITY

WP AND THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE.” CEREUS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, CEREUS MAKES NO REPRESENTATION, WARRANTY, OR AVAILABILITY OF WP OR THE SERVICES OR THAT WP OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF WP OR THE SERVICES, OR THAT WP OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  CEREUS DOES NOT GUARANTEE THE AVAILABILITY OF ANY DATA COLLECTED BY WP OR THE SERVICES.  

CEREUS DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY WP OR THE SERVICES. CEREUS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT WP, THE SERVICES, OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

CEREUS SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFIT, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF WP OR THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF ANY MEMBER OF THE CEREUS GROUP, EVEN IF ANY MEMBER OF THE CEREUS GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NO MEMBER OF THE CEREUS GROUP SHALL BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE WP OR SERVICES OR YOUR INABILITY TO ACCESS OR USE WP OR THE SERVICES.

WP OR THE SERVICES MAY BE USED BY YOU TO  FACILITATE ORDERING WINDOW TREATMENT MANUFACTURING SERVICES, BUT YOU AGREE THAT CEREUS HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY PRODUCTS PROVIDED TO YOU BY THIRD-PARTY PROVIDERS.

CEREUS SHALL HAVE NO LIABILITY OR RESPONSIBILITY SHOULD YOU INCORRECTLY PROVIDE ANY INFORMATION THROUGH WP OR MISREPRESENT ANY INFORMATION PROVIDED TO CEREUS. 

THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION 7 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. THE LIMITATION OF LIABILITY OF THE MEMBERS OF THE CEREUS GROUP SHALL BE LIMITED TO THE EXTENT PERMITTED BY THE LAWS OF THE STATE OF TEXAS AND SHALL HAVE NO EFFECT ON CEREUS’S CHOICE OF LAW PROVISION SET FORTH ABOVE. 

YOU AGREE TO INDEMNIFY AND HOLD CEREUS AND ITS AFFILIATES AND THEIR OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, DEMANDS, LOSSES, LIABILITIES, COSTS, DAMAGES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES), ARISING OUT OF OR IN CONNECTION WITH (I) YOUR  USE OF WP OR THE SERVICES OR GOODS OBTAINED THROUGH YOUR USE OF WP OR THE SERVICES; (II) YOUR BREACH OR VIOLATION OF ANY TERMS; OR (III) YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.