This Service Agreement (Agreement) is made between Flextory LLC (Flextory) with its principal address at 1523 Chandler St., Madison, WI 53711 and the Subscriber (as defined below). This Agreement is effective on the date that you click the box acknowledging your understanding of the terms of this Agreement or execute an order form that references this Agreement (the Effective Date).
You may not access the Services if you are a direct competitor of Flextory, except with Flextory's prior written consent. In addition, you may not access the Site for purposes of monitoring the availability of Flextory's services, Site performance or functionality, or for any other benchmarking or competitive purposes.
1. Definitions. The following definitions (and additional definitions provided below) will apply:
1.1. Activation Date is defined in Section 20.
1.2. Content means Flextory-supplied text, files, photographs, audio, video, location data, graphics and other information and any materials accessed through or made available for use or download through the Site.
1.3. Pricing Schedule means the schedule located on the Site at http://www.flextory.com/plans.html.
1.4. Service means Flextory's online service as described on the Site at www.flextory.com.
1.5. Site refers collectively to Flextory's website and related services.
1.6. Subscriber means the legal entity or individual that enters into this Agreement.
1.7. Subscriber Data means data, information or material provided or submitted by Subscriber or any User to Flextory in the course of utilizing the Service.
1.8. Subscriber Representative means the Users designated by Subscriber as authorized to create User accounts, administer Subscriber's use of the Service and otherwise represent Subscriber for the purpose of this Agreement.
1.9. Term means the term of this Agreement as specified in Section 20.
1.10. User means one of Subscriber's employees, representatives, consultants, contractors or agents and other persons expressly permitted by Subscriber in connection with Subscriber's business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Subscriber (or by Flextory at Subscriber's request as allowed by the Pricing Schedule).
2. Subscriber Use of the Service
2.1. Flextory grants Subscriber a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement. Flextory will host the Service. Flextory reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
2.2. Subscriber is licensed during the Term to store, print, and display the Content and to permit Users to access it only in connection with use of the Service. No other use of Content is permitted. Subscriber will maintain and will require its Users to maintain Content as Confidential Information (as defined below) of Flextory.
3. Fees Generally
Subscriber agrees to pay fees as set forth in the Pricing Schedule or as Flextory and Subscriber otherwise agree in writing.
4. User-Based Fees; Payment
4.1. Subject to the fee structure and calculations stated in the Pricing Schedule, license fees due for the Service are based on storage capacity and bandwidth as well as the availability of API.
4.2. Flextory will invoice monthly for use of the Service at the beginning of the month. All invoices for any charges under this Agreement are due and payable within 10 days of invoice date. For Subscribers paying via credit card, Subscriber's credit card is charged simultaneously with the creation of the Subscriber's invoice. Subscriber's account will be considered delinquent (in arrears) if payment in full is not received by the due date specified on the invoice. Amounts due are exclusive of all applicable taxes, levies, or duties, and Subscriber will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Subscriber believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Subscriber must contact Flextory in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final. Subscriber agrees to allow Flextory the ability to charge their credit card on file each month on the monthly anniversary date of their initial invoice.
5. Excess Data Storage and Bandwidth Fees
5.1. The maximum disk storage space for Subscriber Data provided to Subscriber at no additional charge is specified in the Pricing Schedule. The Subscriber will not be allowed to exceed their maximum disk storage amount as set out in their plan. If the Subscriber requires more storage capacity they must notify Flextory and select a plan with more storage capacity. The Subscriber may choose to remove data to revert back to the lower subscription rate at any time, upon notice to Flextory of this intention.
5.2. The maximum bandwidth for Subscriber Data provided to Subscriber at no additional charge is specified in the Pricing Schedule. If the amount of bandwidth required for Subscriber's use exceeds this limit, Subscriber will receive a warning by email. If Subscriber does not reduce their bandwidth usage to stay within the terms of their plan, Flextory may suspend Subscriber's account until they contact Flextory to switch to a plan that allows for their level of bandwidth usage.
6.2. Flextory reserves the right to remove a Subscriber's account, including all data associated with that account, if Subscriber's invoice is delinquent for two or more weeks.
7. Account Information Submitted to Flextory
Subscriber agrees to keep billing and contact information up to date as Flextory may reasonably require, including Subscriber's legal company name, street address, email address, and name and telephone number of an authorized billing contact, as well as the name, username and password of the Subscriber Representative. Subscriber may make these changes through their account on the Site or through the third party payment provider. Subscriber questions about the process of changing billing information should be directed to email@example.com. Subscriber agrees to make billing changes within 15 days of the change.
8. Appropriate Use of the Service
8.1. While Users may be any persons that Subscriber authorizes to use the Service for its business, including, but not limited to, Subscriber's employees and contractors, Subscriber may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Flextory's prior written consent.
8.2. Subscriber agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively Objectionable Matter). Subscriber will be responsible to ensure that its Users do not submit any Objectionable Matter. In addition, Flextory may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Site; Subscriber and Subscriber's Users will be bound by any such rules. Flextory reserves the right to remove any Subscriber Data that constitutes Objectionable Matter or violates any rules regarding appropriate use, but is not obligated to do so. Subscriber and Subscriber's Users will comply with all applicable laws regarding Subscriber Data, use of the Service and the Content, including laws involving private data and any applicable export controls. Subscriber additionally agrees not to use the Site for illegal purposes or in an illegal manner. Flextory reserves the right to terminate this Agreement for cause in case the Subscriber materially breaches the provisions of this Section.
8.3. Flextory reserves the right to suspend or terminate immediately any Subscriber or User account or activity that is disrupting or causing harm to Flextory's computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding spam, including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by Subscriber will be a material breach of this Agreement.
8.4. Flextory can suspend or limit your access to the Site due to interference with the Site or for excessive use of resources such as bandwidth, processing, or storage. In addition, Flextory may cancel your access at any time with or without cause.
9. Passwords and Access
Subscriber is responsible for all activities that occur under Subscriber's User accounts. Subscriber is responsible for maintaining the security and confidentiality of all User usernames and passwords. Subscriber agrees to notify Flextory immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.
10. Subscriber Data
10.1. All Subscriber Data submitted by Subscriber to Flextory, whether posted by Subscriber or by Users, will remain the sole property of Subscriber or such Users to the full extent provided by law.
10.2. Subscriber will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Subscriber Data. Flextory will not use Subscriber Data for any purpose other than to provide the Service to Subscriber and for statistical reporting purposes. Flextory may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Flextory.
10.3. While Flextory takes reasonable precautions to protect against data loss, including making a best effort to provide daily backups and redundant storage, the company is not liable for loss of Subscriber Data. For this reason, it is recommended that the Subscriber implement their own procedures to backup their Subscriber Data.
10.4. Flextory will use commercially reasonable security measures to protect Subscriber Data against unauthorized disclosure or use.
11. Limited License to Subscriber Data
Subject to the terms and conditions of this Agreement, Subscriber grants to Flextory a non-exclusive license to use, copy, store, transmit and display Subscriber Data to the extent reasonably necessary to provide and maintain the Service.
12. Flextory's Ownership
Flextory and its suppliers retain all rights in the Service and Content. This Agreement grants no ownership rights to Subscriber. No license is granted to Subscriber except as to use of the Service as expressly stated herein. The Flextory name, the Flextory logo, and the product names associated with the Service are trademarks of Flextory or third parties, and they may not be used without Flextory's prior written consent.
13. Restrictions on Use of the Service
Subscriber may not alter, resell or sublicense the Service or provide it as a service bureau. Subscriber agrees not to reverse engineer the Service or its software or other technology. Subscriber will not use or access the Service to: (i) build a competitive product or service; (ii) make or have made a product using similar ideas, features, functions or graphics of the Service; (iii) make derivative works based upon the Service or the Content; or (iv) copy any features, functions or graphics of the Service or the Content. Subscriber will not frame or mirror the Service. Use, resale or exploitation of the Service and/or the Content except as expressly permitted in this Agreement is prohibited.
Flextory agrees to implement its privacy policies in effect from time to time. Flextory's privacy policies can be accessed on the Site at http://flextory.com/privacy.html. Flextory reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.
15. Warranty Regarding the Service
Flextory warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via the Site.
16. Additional Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Subscriber represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Subscriber's billing information is correct.
17.1. Flextory will defend, indemnify, and hold Subscriber (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys' fees) (collectively, Losses) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or Content (other than that due to Subscriber Data). In case of such a claim, Flextory may, in its discretion, procure a license that will protect Subscriber against such claim without cost to Subscriber, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Flextory may terminate the Service and this Agreement without fault, provided that in case of such a termination, Subscriber will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
17.2. Subscriber will defend, indemnify, and hold Flextory (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Subscriber Data or other data or information supplied by Subscriber infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (ii) arising out of breach of Sections 8 (Appropriate Use of the Service) or 8 (Passwords and Access) above.
17.3. Subscriber will defend, indemnify, and hold Flextory (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Subscriber Data and/or other Subscriber-related information or data, including, without limitation, prompt payment to Flextory of all costs (including attorneys' fees) incurred by Flextory as a result. In case of such subpoena or compulsory legal order or process, Subscriber also agrees to pay Flextory for its staff time in responding to such third party subpoena or compulsory legal order or process at Flextory's then applicable hourly rates.
17.4. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (Indemnitee) will provide the indemnifying party (Indemnitor) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
18. Disclaimers and Limitations
18.1. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED TO SUBSCRIBERS BY FLEXTORY. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, TITLE/NON-INFRINGEMENT, or any implied warranties arising out of a course of performance, dealing, or trade usage. EXCEPT AS STATED IN SECTIONS 15 AND 16 ABOVE, THE SERVICE AND CONTENT ARE PROVIDED TO SUBSCRIBER ON AN AS IS AND AS AVAILABLE BASIS. SUBSCRIBER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR SUBSCRIBER'S PURPOSES. FLEXTORY DOES NOT WARRANT THAT USE OF THE SITE WILL BE ERROR-FREE OR UNINTERRUPTED. FLEXTORY IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY SUBSCRIBER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
18.2. Except with regard to Subscriber's payment obligations and with regard to either party's indemnification obligations, in no event will either party's aggregate liability exceed the license fees due for the 12 month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to Subscriber breach of Sections 9 or 10, in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, those resulting from loss of data, revenue, profits, use, economic advantage, or any damage cause by business interruption).
19.1. Confidential Information means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. If you are not sure whether Content is Confidential Information, contact an authorized Flextory employee for clarification and do not disclose such Content to any third party until you receive such clarification. You agree to keep all such Confidential Information strictly confidential and to not disclose any such Confidential Information to any third party without the advance written consent of Flextory.
19.2. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
19.3. Neither party will use the other party's Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party's Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party's Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party's obligations hereunder.
19.4. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party's possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party's possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
19.5. In case a party receives legal process that demands or requires disclosure of the disclosing party's Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
20. Term and Termination
20.1. The Term commences on the effective date the subscriber applies for services and accepts the terms of this Agreement through the Site (Effective Date). Flextory will use commercially reasonable efforts to make the Service available to Subscriber on the Effective Date. The Activation Date will be the date that Flextory first makes the Service available to Subscriber and provides email or written notice of such availability to Subscriber. In most cases, the Effective Date and the Activation Date will be the same; Flextory will inform Subscriber of any likely delay. Billing of monthly license fees will start as of the Activation Date and thereafter on or after the anniversary date of the initial invoice.
20.2. The initial term of this Agreement (Initial Term) will begin on the Effective Date and will end one month from the Activation Date. This Agreement will automatically renew for successive one-month periods (each a Renewal Term) beginning at the end of the Initial Term, unless Subscriber provides notice of termination before the end of the Initial Term or current Renewal Term, as applicable. Applicable pricing, including monthly minimum fees, will continue unchanged from the previous term unless Flextory notifies Subscriber of changes in pricing at least 30 days prior to the change. Flextory reserves the right to terminate this Agreement for convenience at any time with or without notice.
20.3. Flextory, in its sole discretion, may suspend or terminate Subscriber's or User's username and password, account, or use of the Service and/or terminate this Agreement if Subscriber or User materially breaches this Agreement. Flextory reserves the right to suspend or terminate a Subscriber account at any time with or without cause.
20.4. Subscriber may terminate subscription to the Site any time. Subscriber is responsible for the payment of any monies owed at the time of termination or fees that arise out of the termination. Subscriber will be charged for the subscription through the end of the month-long billing period they terminate in.
20.5. The following provisions will survive termination: all definitions, Subscriber's accrued financial obligations, the license to Subscriber Data to the extent reasonable for Flextory's discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 6.2 (Overdue Payments), 10.1 (Subscriber Data), 12 (Flextory's Ownership), 13 (Restrictions on Use of the Service), 17 (Indemnification), 18 (Disclaimers and Limitations), 19 (Confidentiality), 20.5 (Survival of Provisions), 21 (Notice), 23 (Arbitration), 24 (Non-Solicitation), and 25 (Miscellaneous).
Flextory may give notice by means of electronic mail to Subscriber's email address on record in Subscriber's account or by written communication sent by first class mail or by courier service to Subscriber's address on record in Subscriber's account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Subscriber must give notice to Flextory by written communication sent by first class mail or by courier service to Flextory LLC; Attn: Christopher Beley; 1523 Chandler St., Madison, WI 53711. A party may, by giving notice, change its applicable address, email, or other contact information.
This Agreement may not be assigned by Subscriber without the prior written approval of Flextory but may be assigned by Flextory to (i) a parent or subsidiary; (ii) an acquirer of all or substantially all of Flextory's assets involved in the operations relevant to this Agreement; or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
Any dispute arising under this Agreement or the termination of this Agreement will be subject to arbitration in the city of Madison, Wisconsin under the commercial rules of the American Arbitration Association before a single arbitrator. The parties will share the arbitration fees equally. Any award will be enforceable in any court of competent jurisdiction and will not be inconsistent with the terms of this agreement. Nothing herein will prevent a party's application to a court of law for injunctive relief to prevent irreparable harm.
During the Term of this Agreement and for a period of one year thereafter, Subscriber will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Flextory; or (ii) hire or engage for any services any person employed by Flextory.
25.1. Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Wisconsin and applicable US federal law. Except as provided in the arbitration clause, the state and federal courts located in the city of Madison, Wisconsin will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
25.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
25.3. No Agency. No joint venture, partnership, employment, or agency relationship exists between Subscriber and Flextory as a result of this Agreement or use of the Service.
25.4. No Waiver. The failure of Flextory to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Flextory in writing.
25.5. Force Majeure. Except for the payment by Subscriber, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.