Flexdrive makes its mobile application (the “App”) and the Flexdrive website that links to this Agreement (the “Site”) (the App and the Site, collectively, the “Service”) available for your use subject to the terms and conditions in this Agreement. Please note that different or additional terms—including, but not limited to, the Flexdrive Services, LLC Membership Agreement that governs your participation in the Flexdrive subscription program may apply to specific services or features offered on the Service or specific uses of the Service (“Specific Agreements”).
1. Revisions to this Agreement
We may revise and update this Agreement from time to time and will post the updated Agreement to the Service. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this Service will constitute your agreement to any new provisions within the revised Agreement.
2. Your License to Access the Service
All written content prepared and posted by Flexdrive and the Service design, layout, look, appearance, and graphics on the Service, as well as the trademarks, service marks, and logos contained on the Service (“Flexdrive Content”) are owned by or licensed to Flexdrive and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Flexdrive reserves all rights not expressly granted in, and to, the Service and the Flexdrive Content.
Except as otherwise provided in this Agreement, no part of the Service and no Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent.
On the condition that you comply with all your obligations under this Agreement, Flexdrive grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Service. Any use of the Service in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Service.
Your access to the Service is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or services we provide on the Service without notice.
3. Restrictions on Your Use of the Service
You agree that when using the Service, you will not:
- Delete, modify, or attempt to change or alter any of the Flexdrive Content or notices on the Service;
- Introduce into the Service any virus, rogue program, time bomb, drop dead device, ransomware, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Service or to otherwise harm other users, Flexdrive Content, or any third parties, or perform any such actions;
- Use the Service to commit fraud or conduct other unlawful activities;
- Access or attempt to access any other person’s account, personal information, or content without permission;
- Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Service is based;
- Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Service for any reason;
- Use any Flexdrive Content made available through the Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- Submit any content or communications through or relating to the Service that violates any rights of a third party, including copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- Submit any content or communications through the Service that is unlawful, harmful, hateful, threatening, abusive, violent, profane, discriminatory, prejudicial, disparaging, fraudulent, inaccurate, misleading, dangerous, offensive, indecent, harassing, threatening, intimidating, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
- Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Service;
- Connect to or access any Flexdrive computer system or network without authorization;
- Use the information in the Service to create or sell a similar service; or
- Use the Service for the purpose of soliciting, selling, or offering services, merchandise, or products.
Flexdrive may suspend or terminate, in whole or in part, your access to the Service if you violate the terms and conditions set forth in this Section.
4. Your Suggestions and Other Content
We welcome your comments regarding the Service, Flexdrive Content, and our other products and services, and any content you provide through interactive features on the Service. If you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us in connection with or related to the Service and Flexdrive’s services (including any related technology), whether you send such information or materials to us through the Service or through a separate communication channel, you grant us a non-exclusive, perpetual, royalty-free, irrevocable right to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any such information or materials in any manner. Please do not send us such information or materials if you do not wish to grant us the rights set forth in this Section.
5. Third Party Websites
The Service may include or provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Service does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites, even if we receive a referral fee in connection with your use of such third-party websites.
6. Your Privacy; Protection of Your Account Credentials
7. Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (I) YOUR USE OR THE RESULTS OF YOUR USE OF THE SERVICE; (II) ANY ADVICE YOU GLEAN FROM THE SERVICE WHETHER PROVIDED BY US OR A THIRD PARTY; OR (III) ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICE. WE DO NOT PROMISE THAT THE SERVICE WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION OR CONTENT.
8. Limitation of Liability
We are not responsible for any damages to you or anyone filing suit on your behalf for any reason. FLEXDRIVE AND ITS LICENSORS, PARENTS, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, OR SUCCESSORS-IN-INTEREST WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SERVICE OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SERVICE AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF FLEXDRIVE.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE WILL BE TO STOP USING THE SERVICE. IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF FLEXDRIVE, ITS SUPPLIERS, LICENSORS, PARENT, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES OR SUCCESSORS-IN-INTEREST, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1000.00 USD) OR YOUR DIRECT PROVABLE DAMAGES.
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST FLEXDRIVE.
YOU WILL HOLD HARMLESS, INDEMNIFY, AND DEFEND FLEXDRIVE, ITS SUBSIDIARIES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES (COLLECTIVELY, “FLEXDRIVE PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES ARISING THEREFROM) RELATING TO ANY ACTION OR PROCEEDING BROUGHT BY A THIRD PARTY AGAINST ANY ONE OR MORE OF THE FLEXDRIVE PARTIES (I) ALLEGING INJURY, DAMAGE, OR LOSS RESULTING FROM YOUR USE OF THE SERVICE; (II) ALLEGING THAT CONTENT YOU SUBMITTED THROUGH OR RELATING TO THE SERVICE INFRINGES A COPYRIGHT, PATENT, OR TRADEMARK OR MISAPPROPRIATES A TRADE SECRET OF A THIRD-PARTY; (III) RELATED TO ANY ACT OR OMISSION BY YOU WHICH IS A BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (IV) YOUR USE OF INFORMATION OBTAINED THROUGH THE SERVICE.
You will have the right to defend and compromise such claim at your expense for the benefit of the Flexdrive Parties; provided, however, you will not have the right to obligate the Flexdrive Parties in any respect in connection with any such settlement without the prior written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend, the Flexdrive Parties may do so to protect their interests and you will reimburse all costs incurred by the Flexdrive Parties in connection with such defense.
10. CHOICE OF LAW
This Agreement and the rights of the Parties hereunder will be governed by and construed in accordance with the Laws of the State of Georgia, exclusive of conflict or choice of law rules. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive Law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
11. Dispute Resolution
- Binding Mutual Arbitration. Any dispute, claim or controversy in connection with, arising out of or relating to membership in the Program, this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement, including, but not limited to, the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), will be determined by arbitration in the State of Georgia before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Conduct of Arbitration. The arbitration will be commenced by the claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
- Costs. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties, and may award attorneys’ fees.
- Limitation of Liability. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits or any punitive or exemplary damages.
- Arbitration is on an Individual Basis Only; Class Action Waiver. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S POWER TO RULE ON HIS OR HER OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS SECTION WILL REMAIN IN FORCE.
12. Additional Terms Applicable to iOS Devices
The following terms only apply if you install, access, or use the App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”). If you use the App on an Apple-manufactured device, and if there is any conflict between the terms in this Section and other terms in this Agreement, the terms in this Section will control.
- Acknowledgement. You acknowledge that this Agreement is concluded solely between the Parties, and not with Apple. Flexdrive, not Apple, is solely responsible for the App and the content thereof. You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service as of the date you download the App (the “Usage Rules”), and in the event of any conflict, the Usage Rules shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
- Scope of License. The license granted to you is limited to a non-transferable license to use the App on any Apple-branded products that you own or control as permitted by the Usage Rules.
- Maintenance and Support. You and Flexdrive acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The Parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Flexdrive. However, you understand and agree that in accordance with this Agreement, Flexdrive has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
- Product Claims. You and Flexdrive acknowledge that as between Apple and Flexdrive, Flexdrive, not Apple, is responsible for addressing any claims you may have, as limited by this Agreement, or claims of any third party relating to the App or your possession or use of the App, subject to Flexdrive’s indemnification rights, including, but not limited to (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The Parties acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringe that third party’s intellectual property rights, Flexdrive, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required under this Agreement.
- Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using the App.
- Third-Party Beneficiary. The Parties acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
13. Miscellaneous Terms
- Complete Agreement. Except for any Specific Agreements that may govern particular uses or features of the Service, this Agreement constitutes the entire agreement between you and Flexdrive relating to your use of, and access to, this Service and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 1 of this Agreement.
- Severability. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible. Where there is a conflict between the terms in a Specific Agreement and the terms in this Agreement, the conflicting terms in Specific Agreement shall take precedence.
- Headings. Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
- No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
- No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
- Language of the Agreement. Although this Agreement may be translated into other languages, the English language version of this Agreement shall control in any dispute between the parties.
- No Third Party Beneficiaries. Nothing in this Agreement will confer upon any person, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
- Notices. You can provide any notices to us under this Agreement by e-mail or mail using the contact information provided in Section 14. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing Flexdrive with up-to-date contact information, which you may do by updating your account information through the Service or by sending a message to us via the contact information provided in Section 14. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
14. Contact Us
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail email@example.com. You may also send us mail at the following address: 2002 Summit Boulevard, Suite 750, Atlanta, Georgia 30319.