Terms of Service

These Terms of Service are a contract between you and Flip, Inc. (“Flip”, “we”, “our, or “us”). By using the Flip “Site” (websites including, without limitation, www.FlipCX.com and all sub-domains and www.portal.FlipCX.com and all sub-domains) and the “Services” (any associated software, products, and services, including, without limitation, automated telephone communication software and services accessible from the Site), you are agreeing to be bound by this Terms of Service (the “Terms” or “Agreement”). The Terms set forth herein govern access to, interaction with and use of the Flip Services by the organization that you represent (such organization being referred to as “you” or “your”).

PROVISION OF FLIP SERVICES

Flip will provide you with access to the Flip Services. In exchange for access to the Flip Services, you agree that you will use the Flip Services in good faith in accordance with these Terms and not attempt to circumvent payments owed to Flip.

The Flip Services are made available via remotely hosted access and are licensed and not sold. An “Authorized User” is a person employed by you, who you expressly authorize to use the Flip Services in connection with your use of the Flip Services. You shall ensure that only Authorized Users use or access the Flip Services.

You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Site and/or the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform Flip if there is any reason to believe that a user ID, password or any other security device issued by Flip has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Flip reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.

You are solely responsible for all activity in connection with access to the Site and/or Services through your account or using your password, and for the security of your computer systems and phone systems, and in no event shall Flip be liable for any loss or damages relating to such activity.

YOUR RESPONSIBILITIES

You shall comply with all applicable laws, rules and regulations applicable to you during the Term.

You shall maintain throughout the Term commercial liability insurance that meets or exceeds any insurance standards set forth in applicable law, but not less than a commercially reasonable amount of insurance.

You may be required to provide information about yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate.

FEES AND PAYMENTS

Your access to or use of the Services and/or Software shall be contingent upon your payment of all applicable fees as described on the Site or Software at the time (“Fees”).

Upon registering for Services, unless you are an Authorized User, you will be required to designate a valid payment method. You hereby authorize Flip to charge to your designated account all Fees relating to the Services you select, and you agree to pay all such Fees in accordance with the applicable payment method terms and conditions.

Flip shall have no liability to you for acts or omissions of you or any third party.

Flip may increase or decrease the Fees upon thirty (30) days’ prior written notice to you. Your use of the Services after the thirty (30) day notice period constitutes your acceptance of the new or revised Fees. The Fees shall not be subject to adjustment under any circumstances except as otherwise arranged with a Flip representative.

All fees and other amounts are expressed in US Dollars (“US Dollar Amounts”). You may pay all amounts due under this Agreement in either (i) US Dollars; or (ii) your local currency (“Local Currency); provided, however, that if you make payment of any amount in Local Currency, it shall pay upon Flip’s demand any shortfall (the “Shortfall”) of the US Dollar equivalent of the amount paid in Local Currency (“US Dollar Equivalent”) compared to the US Dollar Amounts. Flip shall calculate the US Dollar Equivalent by applying the spot exchange rate quoted in Wall Street on Demand on the day it first receives payment of the amount paid in Local Currency. Flip’s determination of the US Dollar Equivalent and any Shortfall controls, absent manifest error.

TERM AND TERMINATION

This Agreement shall commence on the date upon which you begins using the Flip Services or establish a valid Payment Account (whichever occurs first), and shall continue until terminated by either party, with or without cause, following not less than thirty (30) days’ written notice of such termination.

Notwithstanding the foregoing, all accrued payment obligations will survive expiration or termination of this Agreement. The provisions of the Sections “Fees and Payments”; “Term and Termination”; “Limited Warranty”; “Limitation and Disclaimer of Liability”; “Indemnification”; “Ownership of the Flip Services”; and “Governing Law and Jurisdiction” and applicable definitions shall survive termination of this Agreement for any reason.

MODIFICATIONS

Flip reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Flip Site or Services (or any part thereof) with or without notice.

Flip shall not be liable to you or to any third party for any modification, price change, suspension, interruption of service or discontinuance of the Flip Services.

We reserve the right, in our sole discretion, to change, modify, add to, supplement or delete any portion of these Terms of Service at any time, effective with or without prior notice; provided, however, that we will use reasonable efforts to provide you with notification of any material changes (as determined in our sole discretion) by email.

If any future changes to these Terms of Service are unacceptable to you or cause you to no longer be in compliance, you must immediately stop using the Flip Services. Your continued use of the Flip Services following any revision to this Agreement constitutes your complete acceptance of any and all such changes. Any new features that augment or enhance the current Flip Services, including the release of new tools and resources, will be subject to these Terms of Service.

LIMITED WARRANTY

THE FLIP SERVICE AND FLIP PORTAL ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE FLIP SERVICE AND FLIP PORTAL IS AT ITS OWN RISK. FLIP DOES NOT WARRANT THAT THE FLIP SERVICE OR FLIP PORTAL WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE. FLIP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. No verbal representation, website, advertisement, brochure, manual or other document shall modify or otherwise amend this disclaimer.

LIMITATION AND DISCLAIMER OF LIABILITY

FLIP’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIMS RELATED TO THE FLIP SERVICE, THE FLIP PORTAL OR THIS AGREEMENT, REGARDLESS OF CAUSE OR ORIGIN OR LEGAL THEORY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO FLIP IN THE THEN-PRECEDING TWELVE (12) MONTHS PRIOR TO ASSERTION OF THE CLAIM. FLIP SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, MULTIPLE, EXEMPLARY OR PUNITIVE DAMAGES IN CONNECTION WITH THE FLIP SERVICE, THE FLIP PORTAL OR THIS AGREEMENT.

INDEMNIFICATION

You hereby agree to indemnify, defend and hold harmless Flip (and its subsidiaries, affiliates, agents, directors, officers, representatives, partners, managers, successors, assigns and employees) from any costs, damages, claims, demands, proceedings, loss, suit or other liability or expense (including without limitation reasonable attorneys’ fees and court costs) that directly or indirectly arise out of or is in connection with (i) your use of the Flip Services, (ii) operation of your business, or (iii) your breach of this Agreement; provided that you shall not be responsible for claims to the extent such claims arise from Flip’s gross negligence or willful misconduct.

OWNERSHIP OF THE FLIP SERVICES

Ownership. You agree and acknowledge that the Flip Services, Flip’s Marks and all intellectual property rights therein are the sole and exclusive property of Flip. All rights, title, and interest in and to the Flip Services, together with any documentation, reports or user guides provided therewith or generated thereby, shall remain vested in Flip and its third party licensors.

License. Flip hereby grants you a limited, non-exclusive, non-transferable, royalty-free license to use the Flip Services for the purpose of automating telephone calls and performing analytics related to the same in accordance with this Agreement. Other than the express licenses granted in this Section “Ownership of the Flip Services”, no licenses are granted to you. You hereby agree not to (i) attempt to decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works or improvements of the Flip Services, or any portion of any of the foregoing; (ii) use the Flip Services in any manner whatsoever except in the manner expressly authorized herein; or (iii) use the Flip Services in any unlawful manner or for any unlawful purpose.

Suggestions. While we welcome your feedback, ideas, and suggestions (collectively, “Suggestions”), it is important to be aware of the following restrictions with regards to your Suggestions. If you send us any Suggestions, you agree that: (1) your Suggestion(s) become our property and you are not owed any compensation in exchange; (2) none of the Suggestion(s) contain confidential or proprietary information of any third party; (3) we may use or redistribute Suggestion(s) for any purpose and in any way; (4) there is no obligation for us to review your Suggestion(s); and (5) we have no obligation to keep any Suggestions confidential.

NO ASSIGNMENT

You shall not assign, sublease or transfer any of its rights under this Agreement to any third party, without Flip’s prior written consent. Any attempted assignment in breach of the foregoing shall be void.

AMENDMENTS; INTEGRATION; WAIVER

This Agreement may not be amended, modified or supplemented or any of the provisions waived unless in writing and signed by the party against whom the same is sought to be enforced. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, between the parties with respect to such subject matter. The waiver of any right or default in any instance hereunder shall not be deemed to be a waiver of any future right or breach of hereunder.

SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect.

PUBLICITY

You grant Flip the right to use your trademarks, trade names, brands, logos and copyrightable materials (“Marks”) as a reference for marketing or promotional purposes on our website and in other public or private communications, subject to your standard trademark usage guidelines as provided to us from time-to-time. If you do not want to be listed, you may send an email to contact@FlipCX.com declining to be used as a reference.

GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflicts of law rules. The parties consent to the exclusive jurisdiction of the federal court for the Northern District of New York and state courts located in New York, New York, except that either party may seek equitable relief in any jurisdiction.

THIRD-PARTY BENEFICIARIES

You acknowledge that your subsidiary or affiliate entities that may use the Flip Services on your behalf from time to time are not third-party beneficiaries of this Agreement, and that such entities have no right to enforce this Agreement as third-party beneficiaries hereof.