terms-of-service

Introduction

Flourish is an online service (the “Service”), available on our website at flourish.studio (the “Site”), which allows users (“Users”) to produce data visualizations and other content (“Projects”) based on digital templates (“Templates”) created and uploaded to the Site by themselves or other Users with the Flourish software development kit (“Flourish SDK”).

The Site is operated by or on behalf of Kiln Enterprises Ltd (Flourish, we, us and our). We are a limited company, registered in England. Our registered company number is 08825531, and our registered office is at Studio G06, 16 Baldwin’s Gardens, London EC1N 7RJ. Our VAT registration number is 182 0988 84.

These terms and conditions govern the relationship between Flourish and Users (referred to herein as “you”). It does not govern any relationship which may be formed between one User and another User. If a User wishes to engage another User to create a bespoke Template or Project, we recommend that a separate agreement is entered into in respect of that engagement. Flourish shall have no liability to any User in respect of such an agreement.

Your use of the Site or any of the Service offered on the Site is subject to these terms and conditions and by using our Service you agree to be bound by them. You should print a copy of these terms and conditions for future reference. Use of your personal information submitted to or via the Site is governed by our Privacy and Cookies Policy.

We reserve the right to change these terms and conditions from time to time by changing them on the Site. These terms and conditions were last updated on 1 February 2018.

Account types

There are three types of User account in Flourish:

“Public”. Users with Public accounts (“Public Users”), which are available free of charge, have access to the basic features of the Service, as set out on our Site. When a new User signs up, they will be a Public User unless their account was created by a company with the rights to create Business Users. A Public account can be upgraded (see “Change of account type” below).
“Personal”. Users with Personal accounts (“Personal Users”) have access to premium features, as set out on our Site. This type of account requires an ongoing paid subscription (see “Payment and subscriptions” below).
“Business”, also known as “Enterprise” or “Corporate”. Users with Business accounts (“Business Users”) have access to additional premium features, as set out on our Site or provided in writing in a quotation from us. Business User accounts are controlled by a company or organization (“Company”). One or more Users from the Company have overall responsibility for other Users accounts associated with the company (“Company Admins”). This type of account requires an ongoing paid subscription (see “Payment and subscriptions” below) and comes with a specified number of accounts (see “Seats”, below).

Creating an account

To use the Site or to upload a Template to it, you must first register to set up an account with us by completing the account registration form on the Site; by using the SDK command line interface; or by asking Us to create an account on your behalf. You only need to register once.

To register, you must be at least 18 years of age and have the necessary authority, power and right to use any personal or confidential information you intend to include in your Projects or Templates. It is your responsibility to ensure you satisfy these criteria before choosing to register with us. By registering, you confirm to us that you meet these minimum eligibility criteria.

To register, you must provide us with an accurate and up-to-date email address. You are responsible for the information you provide to us. You must promptly update your account information online in the event of any changes to this information.

Registration is subject to approval by us in all cases, and we reserve the right, in our sole and absolute discretion, to decline any application for registration, without giving a reason. If we approve your registration, you will receive a notification from us.

Username and password

Upon registration for an account with us, you will be asked to create a username and password. You must keep your password confidential at all times and use it only to access and use your account and not for any other purpose. You are the only authorised user of your account and, accordingly, you must not disclose your password to anyone else. You should contact us immediately upon discovering any unauthorised use of your account or error in the operation of your username and/or password (see Contacting us). Any breach of these terms and conditions and/or any use of your account by anyone to whom you disclose your password will be treated as if the breach or use had been carried out by you, and will not relieve you of your obligations to us.

Profile, Project and Template visibility

Upon successfully completing the registration process, Flourish will produce a publicly visible profile page for you (“Profile”). For all types of User, this will contain: your username; any publicly viewable Templates and draft Projects you have created; and any additional information that you have added to your Profile. Logged in Users may also see Projects or Templates on the Profile that they have been granted access to see by You or a Company Admin.

Our Service

Creating and managing Templates

To create and upload Templates to the Site you will need to install the Flourish SDK (available via https://www.npmjs.com/package/@flourish/sdk) and register for an account as explained in the above section “Creating an account”.

Templates uploaded to the Site by Public or Personal Users will be publicly available to all Users. Templates uploaded by Business Users will be publicly available only if explicitly made public by You or a Company Admin. By uploading a Template that will be publicly available, you understand that you are granting Flourish the right to distribute the Template to all other Users of the Site and that subsequently all Users will have the right to create and publish content based on your Template.

We encourage Users to update and modify their Templates to fix bugs, etc. While we do not wish Users to delete Templates from the Site, we understand that you may wish to do so in certain circumstances. If you delete a Template, it will no longer appear on your Profile or in any lists of available Templates, but we reserve the right to keep it available to Users already making use of it.

Creating and managing Projects

As a User of the Service, you may create and publish Projects using any Templates you have access to. If you are a Public User all your draft Projects will be publicly visible (though not editable) and discoverable via your Profile and other pages on the Site. For other types of User, Projects are private unless published or explicitly made public by You or your Company Admin.

Publishing, downloading and embedding Projects

Users can optionally publish their Projects on the Flourish site. This creates a new publicly accessible URL for the Project and embeds the Project in a publicly visible page (“Showcase Page”). Any User can embed a published Project on other websites using the code available on the Showcase Page. We are not responsible for the content of these websites or for anything provided by you and do not imply any endorsement of or association with your operators or promoters.

Personal and Business Users can also download Projects to publish them on their own servers. Downloaded Projects can be embedded on other websites using the code provided as part of the download.

Except in the case of Business Users embedding Projects created by Users associated with the same Business Account, when embedding a Project you must include the Flourish credit and link (“Credit”) that is inserted into the embedding page by the provided embed code. You must not remove or obscure the Credit, or restyle it to make it smaller or less visible.

Unacceptable content

By uploading a Template or creating a Project on the Site, you confirm that your Template or Project does not contain, transmit, distribute, link to or otherwise make available, or advertise or promote any content that:

infringes any intellectual property rights or data protection, privacy or other rights of any other person;
is defamatory or in breach of any contractual duty or any obligation of confidence;
is obscene, sexually explicit, threatening, abusive, harassing, inciteful of violence or hatred, blasphemous, discriminatory (on any ground);
is liable to cause anxiety, alarm or embarrassment;
is knowingly false or misleading; or
does not comply with all applicable laws and regulations or is otherwise objectionable.

Pricing and subscriptions

Paying online

Once you have registered and set up an account with us, Personal Account services may be subscribed to by following the prompts that will appear on-screen. You may check and correct any input errors up until the point at which you submit your purchase to us by clicking the [“Pay now”] button on the checkout page.

You acknowledge that by clicking on the [“Pay now”] button, you enter into an obligation to pay for the Personal Account subscription. The contract between you and us in relation to the Service(s) subscribed to (“Contract”) will be formed at the moment we confirm your purchase of the Personal Account subscription on the following page.

Subscriptions

Use of a Personal or Business account requires an up-to-date subscription payment, as set out on our site or provided in writing in a quotation from us. Payment for a Subscription is due upfront, is non-refundable (subject to the Consumer Cancellation Rights, if applicable) and can be made by credit card via the Site (if available for the required account type) or by bank transfer on receipt of our invoice.

The subscription gives you access to the Personal or Business account for a period of a year unless specified otherwise (“Subscription Period”). At the end of this Subscription Period, your subscription will automatically renew (unless we are no longer offering the Service, in which case we will notify you) for an equivalent period (and continue to do so), unless you have already cancelled your subscription.

If your subscription to a Service renews, charges for each renewal period (at the same level as the preceding subscription period, unless the charges have increased, in which case we will notify you at least 14 days beforehand) will automatically be charged to your account, in advance, on the renewal date (or shortly before or after), unless you have already cancelled your subscription.

If you do not wish your subscription to a Service to renew automatically at the end of the then-current subscription period you must notify us (see Contacting us), or alter the subscription renewal settings of your account through the Site, at least 7 days in advance of renewal. If you do not do this or not in sufficient time, charges to your account may continue for the next subscription renewal period. It is your responsibility to notify us in advance of renewal.

Consumer Cancellation Rights

For the purposes of this clause, a consumer, in accordance with the Consumer Contracts Regulations, means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession. If you are a sole trader using the Services mainly for your trade, you will not have the consumer rights set out in these terms.

Where you are a consumer and have purchased a Personal Account subscription, you normally have the right to cancel a Contract within 14 days after the date you subscribe to the Personal Account subscription. However, you acknowledge that we provide the Personal Account Service immediately following acceptance of your purchase (which, by clicking on the [“Pay now”] button, you request us to do) and that you will have no right to change your mind and cancel under the Consumer Contracts Regulations once you have accessed your Personal Account. If you cancel before you access your Personal Account (and within the 14-day period), then the charge you pay us will be refunded.

Missed payments

If we are unable to collect payment – for example because of rejected card transactions or unpaid invoices – the account or accounts in question will be made unavailable (“Frozen”) until the required payment is received. If your account is Frozen, published or downloaded Projects will continue to work, but you will no longer be able to edit them. Instead of making a new payment, Personal Users with a Frozen account will be given the alternative option of converting to a Public account. This will make all of their Projects publicly visible.

Seats

Business accounts include a specified number of Users (“Seats”). An individual can use a seat across multiple devices, but must not share their log-in with other people – even if they use it at different times. Seats are allocated to individuals on the creation of the accounts; they can be transferred between staff members by contacting Kiln or by using any controls available to Company Admins on the Site.

Additional seats can be purchased by a Company if required. Prices are available on request from us by email. When adding additional seats for a Company, they will be charged pro-rata.

Intellectual property

All intellectual property rights belonging to you that you upload on to the Site (e.g. data, text, template code created by you) remains your intellectual property. You will indemnify us against any loss, damage or expense (including reasonable legal costs) which we incur or become liable for as a result of any claim by a third party that the use or possession of anything you upload onto the Site infringes the Intellectual Property Rights of any third party.

All intellectual property rights in the Site (including text, graphics, software, photographs and other images, videos, sound, trade marks and logos) are owned by us or our licensors. We also own the intellectual property rights for all templates created by Us, except for bespoke private templates commissioned by and created for specific customers, which are subject to their own IP terms. Except as expressly set out here, nothing in these Terms gives you any rights in respect of any intellectual property owned by us or our licensors and you acknowledge that you do not acquire any ownership rights by accessing the website or using the equipment.

We grant you a non-exclusive, non-transferable worldwide license to use the Site and its contents (including the templates) for the duration of your subscription, or (if a Public User) whilst you have an active Flourish account. We grant you an irrevocable, non-exclusive licence to publish downloaded projects in unmodified form – even if you no longer have an active Flourish account.

Use of any Flourish templates created by third parties (e.g. commissioned by you from an agency or contractor) are subject to whatever IP arrangements and other terms you agree with the template creator.

Using Flourish Template code

Some account types allow access to the source code(“Code”) for selected Templates made by the Flourish team. Users with access to our Code can adapt it to make new templates. The Code for each Template must be requested separately. We reserve the right to decide which Templates are made available in this way and the terms under which the Code for each Template is provided.

Viewing and editing of our Code is strictly limited to Users who (a) have been explicitly granted the right to use the Code in question, and (b) have an active up-to-date Flourish subscription. It is strictly prohibited to distribute or publish our Code without our prior written consent. You must not use our Code for any purpose except producing Flourish templates and projects on the Site.

Confidentiality

The terms for each Business account are confidential, and must not be disclosed to persons outside the Company.

Access to the Site; Acceptable use

We cannot and do not guarantee that the Site or its content will be free from viruses and/or other code that may have contaminating or destructive elements. It is your responsibility to implement appropriate IT security safeguards (including anti-virus and other security checks) to satisfy your particular requirements as to the safety and reliability of any application or website and its content.

You agree that you will not, nor allow anyone else to, use your account or any Service:

to access or attempt to access any Service which you are not authorised to use;
to interfere with or disrupt the provision of any Service or use any Service in a way that interferes with anyone else’s use of any Service;
to further any criminal or fraudulent activity or to impersonate another person;
to breach the rights of any person (including, but not limited to rights of privacy and intellectual property rights); or
to otherwise be in breach of any acceptable use guidelines that we may issue from time to time.

Service suspension and termination

We may, from time to time, with or without prior notice, temporarily suspend the operation of any Service and/or the Site (in whole or in part) for repair or maintenance work or in order to update or upgrade any contents, features or functionality.

We may, with or without prior notice, suspend and/or terminate any Service and/or your use of your account in the event that:

you have breached any of these terms and conditions; or
you have missed a payment for your subscription; or
you become insolvent or make composition with your creditors or petition for your own bankruptcy or have a bankruptcy petition presented against you, or are subject to any event or proceedings which are equivalent or substantially similar under any applicable jurisdiction.

If you have breached these terms and conditions, we may take such action as we deem appropriate. Such a breach by you may result in our taking, with or without notice, all or any of the following actions:

issue of a warning to you;
immediate, temporary or permanent removal of any content submitted by you;
immediate, temporary or permanent withdrawal of your right to use any Service;
legal proceedings against you for reimbursement of all recoverable loss and damage resulting from the breach; and/or
disclosure of all relevant information to law enforcement authorities as we reasonably feel is necessary.

The responses described above are not limited, and we may take any other action we deem appropriate.

Closure of account

You can close your account at any time by notifying us in writing (see Contacting Us), though subject to the Consumer Cancellation Rights (above) if applicable, we do not give refunds for unused time. On closure of your account, your Projects and Profile information, plus any Templates created by you that are not being used by other Users, will be deleted. However, Templates created by you that are already being used by other Users may continue to be available to those Users.

In the case of Frozen accounts, we will continue to store your Projects, Templates and Profile information for a minimum period of 2 (two) years after the account was Frozen. We reserve the right to close the account and delete your Projects, Templates and Profile information at the end of this period.

Change of account type

If you are a Public User and you wish to upgrade to a Personal account, all your public Projects will become private, except for those publicly published via a Showcase page or third-party website, which will remain publicly visible.

If you are a Public or Personal User and you wish to associate your existing account with an existing Company’s account in order to become a Business User, you will need to be invited by a Company Admin. If you accept the invitation, your Public Account will become a Business Account and from that point on will be controlled by the Company Admin, which will have the power to close it and manage your Projects, Templates and Profile information.

Our liability

Nothing in these terms and conditions shall limit or exclude our liability to you:

for death or personal injury caused by our negligence;
for fraudulent misrepresentation;
for breach of any term implied by the Consumer Rights Act 2015 and which, by law, may not be limited or excluded; or
for any other liability that, by law, may not be limited or excluded.

Subject to this, if you are a consumer and not a business customer, in no event shall we be liable to you for any business losses, and if you are a business customer, in no event shall we be liable to you for any indirect or consequential losses, or for any loss of profit, revenue, contracts, data, goodwill or other similar losses. Any liability we do have for losses you suffer arising from any use of the Service shall not in respect of any 12-month period (calculated from the date of that Contract) exceed the greater of (i) the charges payable by you for the relevant Service in that 12-month period; and (ii) £500; and is strictly limited to losses that were reasonably foreseeable. Losses are foreseeable where they could be contemplated by you and us at the time your purchase is accepted by us.

We will not be liable or responsible for any failure to perform, or delay in performance of, any Service that is caused by events outside our reasonable control.

General

You may not transfer or assign any or all of your rights or obligations under any of these terms and conditions.

All notices given by you to us must be given in writing to the address set out at the end of these terms and conditions. We may give notice to you at either the email or postal address you provide to us when placing an order.

If we fail to enforce any of our rights, that does not result in a waiver of that right.

If any provision of these terms and conditions is found to be unenforceable, all other provisions shall remain unaffected.

These terms and conditions may not be varied except with our express written consent.

Apart from any separate agreement entered into between us and a Company Admin concerning the provision of Business accounts, these terms and conditions and any document expressly referred to in them represent the entire agreement between you and us in relation to the Service. We are required by law to advise you that contracts may be concluded in the English language only and that no public filing requirements apply.

These terms and conditions shall be governed by English law, except that (if you are a consumer and not a business user) and if you live in a country (which, for these purposes, includes Scotland or Northern Ireland) of the European Union other than England, there may be certain mandatory applicable laws of your country which apply for your benefit and protection in addition to or instead of certain provisions of English law.

You agree that any dispute between you and us regarding these terms and conditions will only be dealt with by the English courts, except that (if you are a consumer and not a business user) and if you live in a country (which, for these purposes, includes Scotland or Northern Ireland) of the European Union other than England, you can choose to bring legal proceedings either in your country or in England, but if we bring legal proceedings, we may only do so in your country.

Contacting us

Please submit any questions you have about these terms and conditions or an order you have placed or ordering in general, or any complaint or concern in relation to any Service by email to support@flourish.studio or write to us at:

Flourish Team Studio G06 16 Baldwin’s Gardens London EC1N 7RJ

Document version: 2.0 Last updated: 1 February 2018