Flexibits Inc. (“Flexibits") welcomes you to its online website (including all content and functionality available through the flexibits.com domain name (the "Site") and/or applications (each an “App” and collectively, the “Apps”). Flexibits is delighted to provide You with access to the Site, related data, Flexibits’ proprietary software, and content and related documentation and information through the Apps in connection with certain services provided by the Apps (collectively the “Services”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE AND/OR SERVICES (AS DEFINED HEREIN).
1.1 Proprietary Rights. Except where noted, the entire contents displayed on the Site and Apps (the “Content”) have copyrighted protection as a collective work under the laws of the United States and other copyright laws. Flexibits is the sole exclusive owner of the Content. There may be collective work that is the property of other third parties and such collective work is also protected by copyright and other intellectual property laws. You are allowed to display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the Content from the different areas of the Site only for non-commercial use, unless otherwise permitted. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written permission of the copyright owner. You may not change or delete any proprietary notices from materials downloaded from the Site or Apps. You agree not to use any Flexibits logo or any other proprietary graphic or trademark without Flexibits' express written consent. As between the parties, title, ownership rights, and intellectual property rights in the Content, and any copies or portions thereof, shall remain in Flexibits and/or its content providers. Third-party trademarks, service marks and logos contained in the Site or Apps are owned and licensed by their respective owners. Any and all rights not expressly granted herein are reserved.
1.2 Grant of Limited License. Your access to the Services is licensed and not sold. Subject to the terms of this Agreement and upon your registration for an Account, Flexibits hereby grants you a revocable, non-exclusive, non-transferable account enabling you to access and use the Services, the applicable Apps and the Site. All the Content that is made available to view and/or download in connection with the Site and any of the Apps is owned by and is the copyrighted work of Flexibits and/or its suppliers and is licensed, not sold. You do not have the right to lend, lease, rent or sublicense the Site, any of the Apps and/or the Content.
1.3 Use of the Apps.
(a) General. In addition to the terms set forth in this Agreement, Your use of any of the Apps is subject to the following additional terms (the “App Terms”): You understand and agree that (i) Your use of the App is conditioned upon Your acceptance of these App Terms, (ii) the App contains copyrighted material, trade secrets, and other proprietary materials of Flexibits and its licensors, and (iii) in order to protect those proprietary materials, except as expressly permitted by applicable law, neither You nor a third party acting on Your behalf will: (a) decompile, disassemble or reverse engineer the App; (b) modify or create derivative works of the App; (c) use the App in any manner to provide service bureau, commercial time-sharing or other computer services to third parties; (d) transmit the App or provide its functionality, in whole or in part, over the Internet or other network (except as expressly permitted above); (e) sell, distribute, rent, lease, sublicense or otherwise transfer the App to a third party; or (f) use components of the App to run applications not running on the App.
(b) App User Agreement. YOU HEREBY AGREE: (i) to only use the Apps to access and/or use the Services; (ii) will not authorize any third party to access and/or use the Services on Your behalf using any automated process such as a BOT, a spider or periodic caching of information stored by the Services on Your behalf without a separate written agreement with Flexibits; (iii) will not use any software or hardware that reduces the number of Users directly accessing or using the Services (sometimes called 'multiplexing' or 'pooling' software or hardware); (iv) will not lend, lease, rent or sublicense the Apps; (v) to permit Flexibits to send and deliver updates to You as part of Your use of the Apps; and (vi) to allow the Apps to automatically download and install updates from time to time from Flexibits which are designed to improve, enhance and further develop the Apps and may take the form of bug fixes, enhanced functions, new software modules or completely new versions.
1.4 User Representations. You represent and warrant to Flexibits that you will (a) maintain the security, confidentiality and integrity of all messages and the content that you receive, transmit through or store on the Services or the Apps; (b) comply with the terms set forth herein; (c) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of the Services or the Apps. You further represent, warrant and agree that you will not use the Site, the Services or any of the Apps in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; or (ii) violates any law, statute, ordinance or regulation
You further represent and warrant that (1) you are over the age of thirteen (13) and have the power, authority or consent to enter into and perform your obligations under the Agreement; (2) all information provided by you to Flexibits, including your name, credit card information or other payment information, is truthful, accurate and complete; (3) you are authorized, or have the permission of the authorized signatory of the credit card or other payment service you provide to Flexibits, to pay any fees incurred from purchase of the Apps and the use of the Services; and (iv) you shall comply with all terms and conditions of this Agreement.
1.5 User’s Restrictions. You are not permitted, directly or indirectly, to (i) engage in any acts inconsistent with the principles of copyright protection and fair use, as codified in 17 U.S.C. Sections 106-110, without obtaining the express written consent of Flexibits and/or the copyright owner; or (ii) distribute, display, rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Content or any Submitted Content, in whole or in part; (iii) remove any proprietary notices or labels on the Content or (iv) circumvent, disable or otherwise interfere with security-related features of the Site, the Services or any of the Apps.
2.1 General Disclaimer. THE SITE AND THE APPS ARE PROVIDED BY FLEXIBITS ON AN "AS IS" BASIS. FLEXIBITS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, THE APPS OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE OR THE APPS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, FLEXIBITS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THESE TERMS. FLEXIBITS CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. FLEXIBITS CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE SITE OR THE APPS WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. FLEXIBITS DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICE ACCESSED THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE OR APPS WILL BE CORRECTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND/OR APPS. FLEXIBITS MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON. Although Flexibits has attempted to provide accurate information on the Site AND APPS, Flexibits assumes no responsibility for the accuracy or completeness of the information.
2.2 Links to Third Party Services. The Site and/or Apps may contain links to third party websites and services (i.e. PayPal, iCloud and/or Google Calendar, AIM, Google Talk, etc.). You agree that access to any other Internet Site linked to the Site and/or Apps is done at your own risk and Flexibits is not responsible for the accuracy, availability or reliability of any of these third party websites and services. These third party websites and services are not under the control of Flexibits and as such, you agree that Flexibits is not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party websites and services.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS FLEXIBITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT, BREACH OF YOUR REPRESENTATIONS CONTAINED HEREIN, OR ANY ACTIVITY RELATED TO YOUR ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES' WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING THE SITE OR THE APPS USING YOUR ACCOUNT.
YOU AGREE THAT NEITHER FLEXIBITS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE SITE, THE APPS, THE SERVICE, OR THE CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT FLEXIBITS SHALL NOT BE LIABLE FOR SUBMITTED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST FLEXIBITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF FLEXIBITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR LICENSORS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SITE, THE APPS, THE SERVICE, OR THE CONTENT.
NOTWITHSTANDING THE FOREGOING PARAGRAPH FLEXIBITS WILL NOT BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE APPS OR RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENTED, EVEN IF FLEXIBITS MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Site and the appS are controlled and offered by Flexibits from its facilities in the United States of America. Flexibits makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site OR APP from other jurisdictions do so at their own volition and are responsible for compliance with local law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California. You agree that any legal action or proceeding between Flexibits and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in Contra Costa County, California, United States. Any cause of action or claim you may have with respect to Flexibits must be commenced within one (1) year after the claim or cause of action arises. Flexibits’ failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Services and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Services. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any Nonprofit User, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 2, 3, 4, and 5 are intended to benefit Flexibits and its officers, directors, employees, agents and licensors. Flexibits may assign its rights and duties under this Agreement to any party at any time without notice to you.