TERMS OF SERVICE

These Terms of Service (the “Terms”), the associated order for services (the “Order”), and any amendments thereto signed by you and Flozio are, together, the “Agreement” that governs access to and use of Flozio “Services” (as defined below), and is between Flozio, Inc. (“Flozio”), a Delaware corporation, and the company or other legal entity accepting this Agreement, and affiliates of that company or entity (“Customer”). This Agreement is effective, and Customer agrees to its terms and conditions, as of the date that Customer accepts the Agreement by (1) clicking a box indicating Customer acceptance; (2) executing an order for services (the “Order”); or (3) using the Services (the “Effective Date”). 

By using the Services you are agreeing to the terms and conditions of the Agreement. If you are using the Services on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization to the Agreement. In that case, “you”, “your”, and “Customer” will refer to that entity and its affiliates. 

This Agreement was last updated on May 14, 2024. 

Customer may use the Services only in accordance with the Agreement. Customer may use the Services only if you have the legal power and capacity to form a contract with Flozio. The Services will continue to evolve as Flozio refines features and functionality, and Flozio may modify the Services, in general or with respect to you, from time to time without prior notice. Flozio may delete any content or data from the Services to meet our regulatory obligations or protect you, other Flozio Customers, and/or the Services.

1. DEFINITIONS 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

“Beta Services” means Flozio Services that are not generally available to customers. 

“Customer Data” means electronic data and information submitted, transferred, or uploaded by or for the Customer to the Subscription Services and processed by Flozio on Customer’s behalf (including information the Subscription Services may obtain from Third Party Applications). 

“Documentation” means the applicable Flozio materials including user guides and other information relating to the Subscription Services, as may be updated from time to time and currently found at https://www.flozio.ai/ 

“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses. 

“Order Form” means an ordering document specifying the Subscription Services and/or Professional Services to be provided to and/or entered into by the Customer or its Affiliate and Flozio, including any addenda and supplements thereto, including SOWs. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. 

“Professional Services” means onboarding, implementation, training, configuration, consulting, or other professional services ordered by Customer and to the extent described in a SOW. For the avoidance of doubt, Professional Services are not tied to the subscription term of Subscription Services and also exclude standard maintenance and support included with the Subscription Services. 

“Services” means the Subscription Services and Professional Services. 

“SOW” means the statement of work further describing the Professional Services to be provided to Customer. 

“Subscription Services” means the Flozio web services that are ordered by Customer and made available online by Flozio as specified in an applicable Order Form. Subscription Services include any Updates made available during the subscription term. 

“Third Party Applications” means products, services, or information that interoperate with the Services and are provided by third parties and not by Flozio. 

“Updates” means modifications, updates, and changes which may be made by Flozio to the Subscription Service which Flozio makes generally available to its customers at no additional fee. Updates exclude new features, functions, and capabilities which are offered for an additional fee and must be specified in an Order Form or SOW. 

“User” means an individual who is authorized by Customer to use a Service on Customer’s or Customer Affiliate’s behalf to whom Customer (or Flozio at Customer’s request) have supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors, and agents.

2. FLOZIO RESPONSIBILITIES 

2.1. Provision of Subscription Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, Flozio will (a) make the Subscription Services available to Customer in accordance with the Documentation, (b) provide Flozio’s standard support, as set forth in the Documentation, and (c) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for (i) any planned downtimes, or (ii) any unavailability caused by circumstances beyond Flozio’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Flozio employees), failure or delay of providers of Internet service or Third Party Applications, or denial of service attack. 

2.2. Protection of Customer Data. Flozio will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data located on Flozio servers. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, and disclosure of Customer Data by or to third parties lacking a valid username and password and by Flozio personnel, except for actions by Flozio personnel (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.21 (Compelled Disclosure) below, (c) as provided in Section 6.4, or (d) as Customer expressly permits in writing.

2.3. Flozio Personnel. Flozio will be responsible for the performance of Flozio’s personnel (including Flozio employees and contractors) and their compliance with Flozio’s obligations under this Agreement. 

2.4. Beta Services. From time to time, Flozio may invite Customer to try or otherwise make Beta Services available to Customer at no charge. Customer may accept or decline any such Beta Services in Customer’s sole discretion. “Beta Services” will be clearly designated as beta, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes only and are not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, provided however, all restrictions in this Agreement shall apply equally to Customer’s use of Beta Services. Flozio may discontinue Beta Services at any time in Flozio’s sole discretion and may or may not make them generally available. Beta Services are provided “as-is”, without warranties of any kind. Flozio will have no liability for any harm or damage arising out of or in connection with a Beta Service. 

2.5. Professional Services. Professional Services, if applicable, shall be set forth in an Order Form, with a SOW attached. Flozio agrees to perform the Professional Services in a timely and professional manner consistent with industry standards for like services and in accordance with the specifications of the applicable SOW. In the event of Flozio’s failure to comply with the obligations in this section, as Customer’s sole and exclusive remedy, Flozio shall correct or re-perform the non-complying Professional Service. Each SOW shall be deemed to be part of the Agreement upon full execution of the same.

3. USE OF SUBSCRIPTION SERVICES 

3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Subscription Services are purchased as subscriptions, (b) additional Subscription Services may be added during a subscription term as agreed between the parties and (c) any added Subscription Services will terminate on the same date as the underlying Subscription Services. 

3.2. Usage Limits. Subscription Services are subject to usage limits, including, for example, the quantities specified in Order Forms and technical and functional requirements set forth within the Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Subscription Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Subscription Services. If Customer exceeds a contractual usage limit, it will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Flozio’s request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment). 

3.3. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquires Customer Data and provides it to Flozio, including ensuring that the scraping of websites and any other data collection methods used are legal and compliant with the websites' terms and policies, as well as with applicable laws and regulations in the relevant jurisdictions, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Flozio promptly of any such unauthorized access or use, (d) use the Services only in accordance with applicable laws and government regulations, (e) comply with terms of service of Third Party Applications with which Customer uses the Services, and (f) be responsible for ensuring that the designated system administrator(s) and billing contacts on behalf of Customer are and will remain current, complete, and accurate, including updating the administrators and contacts as necessary to comply with the foregoing obligation.

3.4. Usage Restrictions. Customer will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Customer or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) provide access to the Services to a Flozio direct competitor, (d) use a Service to store or transmit data that infringes the intellectual property rights or other proprietary rights of any third party or violates third-party privacy rights, (e) use a Service to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to or perform security testing on any Service or its related systems or networks, (h) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (i) copy a Service or any part, feature, function, or user interface thereof, (j) frame or mirror any part of any Service, other than framing on Customer intranets or otherwise for Customer’s own internal business purposes, (k) access any Service or monitor the Services availability, performance or functionality in order to build a competitive product or service, or for any other benchmarking or competitive purposes, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). 

3.5. Suspension. Flozio retains the right to suspend the Services, Customer accounts, and User accounts in the event of any security threat or Customer’s breach or threatened breach of any of the restrictions in Section 3. Flozio will terminate any such suspension as soon as Flozio determines that the risk underlying the suspension has been mitigated to Flozio’s satisfaction. 

3.6. Use of the Services. Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Customer and Users’ usernames, passwords, and accounts with Flozio, Customer accepts responsibility for the confidentiality and timely and proper termination of user records in Customer local (intranet) identity infrastructure or on Customer local computers. Flozio is not responsible for any harm caused by Users, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Customer local identity management infrastructure or Customer local computers. Customer is responsible for all activities that occur under Customer’s or its Users’ usernames, passwords or accounts or as a result of Customer’s or its Users’ access to or use of the Services. 

3.7. Additional Limitations on Use. Customer acknowledges and agrees that use of the Services to transmit, store, or otherwise process “Highly Sensitive Information” is unnecessary for use of the Services and Customer shall be solely responsible for any such use of the Services by Customer or Users, including ensuring that transmittal, processing, or storage of such information is in compliance with applicable laws. “Highly Sensitive Information” is defined as (a) numbers used for identification, such as social security numbers, passport numbers, or driver’s license numbers; (b) personal health or medical information; (c) banking or payment card information; (d) sensitive government or military information, including information subject to U.S. FedRAMP requirements; (e) information collected from or regarding minors or children; (f) criminal history; (g) other personal information which qualifies (pursuant to data privacy laws and regulations) as a special category of personal data, sensitive personal information, or similarly defined terms, such as a person’s religious or philosophical beliefs, immigration or citizenship status, genetic or biometric data, and sexual life or sexual orientation; or (h) data which by law must be localized in a jurisdiction outside of the United States or requires additional requirements beyond those agreed upon herein to permit transfer to the United States. Notwithstanding anything to the contrary in this Agreement, Flozio shall not be liable for Flozio’s noncompliance with a law or regulation where such noncompliance is attributable to Customer’s use or provision of Highly Sensitive Information in connection with the Services.

3.8. Use by Customer Affiliates. Customer Affiliates may access and use the Services for their own internal use, to the extent that Customer has authorized its Affiliate to do so and Customer has purchased the appropriate level of access to the Services. All obligations of the Customer shall apply equally to each Customer Affiliate that uses the Services, provided that the Customer shall be responsible for ensuring the Customer Affiliate complies with this Agreement and all acts or omissions of Customer Affiliates. 

3.9. Acceptable Use. Customer will not, and will not attempt to, use the Services to violate any laws or rights of Flozio or any other person or otherwise misuse or inappropriately use the Services. Customer will use the Services only consistent with the Acceptable Use Policy, as it may change from time to time.

4. THIRD PARTY APPLICATIONS 

4.1. Third Party Applications. Customer may choose to obtain Third Party Applications to use with features within the Services. To use such features, Customer may be required to obtain access to Third Party Applications from their providers. Any acquisition by Customer of Third Party Applications, any exchange of data between Customer and any provider of a Third Party Application, and any governing terms are solely between Customer and the applicable provider. No procurement of Third Party Applications is required to use the Services. 

Flozio assumes no responsibility for, and specifically disclaims any liability, warranty, and obligation with respect to Third Party Applications, whether or not they are recommended or approved by Flozio, listed within the Flozio App directory, or otherwise noted. 

If Customer elects to integrate Third Party Applications with the Services, Customer agrees that the Services may access its Third Party Applications account to enable interoperation between (including, if applicable, the exchange and transmission of data) the Services and the applicable Third Party Applications. Furthermore, Customer may be required to adhere to additional requirements as set forth in the Documentation to enable integrations with certain Third Party Applications. If the provider of a Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, Flozio may cease providing those Service features without entitling Customer to any refund, credit, or other compensation. 

5. FEES AND PAYMENT FOR SERVICES 

5.1. Fees. Customer will pay all fees specified in each Order Form and/or SOW, as applicable (“Fees”). Except as otherwise specified herein or in an Order Form and/or SOW, all Fees are payable in advance, non-cancelable and non-refundable and based on the Services purchased. 

5.2. Invoicing and Payment. Customer will provide Flozio with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Flozio. If Customer provides credit card information to Flozio, Customer authorizes Flozio to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term. Such charges shall be either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Flozio will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing information to Flozio and notifying it of any changes to such information. 

5.3. Interest, Suspension of Service and Acceleration. If any Fees are 30 or more days overdue, Flozio may, without limiting Flozio’s other rights and remedies (i) charge the Customer interest at the rate of the lesser of 1.5% per month, or the maximum rate permitted by law, (ii), accelerate Customer unpaid Fees so that all such obligations become immediately due and payable, and (iii) suspend the Services until such amounts are paid in full. Flozio will give Customer at least 10 business days’ prior notice that Customer account is overdue, before suspending Services to Customer. 

5.4. Payment Disputes. Flozio will not exercise its rights under Section 5.3 (Interest, Suspension of Service and Acceleration) above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

5.5. Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If Flozio has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.5, Flozio will invoice Customer and Customer will pay that amount unless Customer provides Flozio with a valid tax exemption certificate authorized by the appropriate taxing authority. Flozio is solely responsible for taxes assessable against Flozio based on Flozio’s income, property, and employees, and Customer is responsible for all other Taxes. 

5.6. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Flozio regarding future functionality or features.

5.7. Service Fees. After the initial term, Service Fees are subject to change and may be changed by notice to Customer at least 30 days in advance of any Renewal Term.

6. PROPRIETARY RIGHTS AND LICENSES 

6.1. Reservation of Rights. Subject to and conditional on Customer’s payment of applicable Fees as well as Customer’s compliance with the terms of this Agreement and any applicable Order Form(s), Flozio grants Customer and Users a limited, non-exclusive, non-transferable (except in compliance with Section 13.4) right to access and use the Services set forth within such Order Form(s) and Flozio Documentation during the subscription term for Customer’s reasonable internal business purposes. No rights are granted to Customer hereunder other than the right to receive and use the Services as expressly set forth herein. Flozio and its licensors reserve all of Flozio’s or its licensors’ right, title, and interest in and to the Services, including all of Flozio’s or its licensors’ related intellectual property rights. 

6.2. License by Customer to Host Customer Data and Applications. Customer grants Flozio and its Affiliates a worldwide, limited-term right to host, copy, transmit, and display or otherwise use Customer Data (1) as necessary for Flozio to provide the Services, or otherwise exercise Flozio’s rights or obligations pursuant to this Agreement; (2) as necessary to provide support, address service issues/requests, improve or enhance the Services as permitted under applicable law, or otherwise enhance Customer use of the Services; (3) as required by law, regulation, or in accordance with governmental request or legal process; (4) as requested by Customer; and (5) to investigate or address security or integrity issues related to the Services. Except as expressly permitted by this Agreement, Flozio acquires no right, title, or interest from Customer or Customer licensors under this Agreement in or to Customer Data or any Third Party Application. 

6.3. License by Customer to Use Feedback. Customer grants to Flozio and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of the Services. 

6.4. Use of Data. Flozio shall have the right to (and to retain third parties to) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies, provided that Customer Data that is also personal information will only be used in connection with the permitted purposes in Section 6.2, unless such personal information is aggregated or otherwise de-identified. Flozio may (during and after the term hereof), (i) use such information and data to improve and enhance the Services and for other development, benchmarking, diagnostic, and corrective purposes in connection with the Services and Flozio’s other offerings, and (ii) use third party service providers, contractors, and subcontractors (“Flozio Providers”) to assist in providing, supporting, and improving the Service. Flozio may share all such information and data with Flozio Providers, who may store and use it solely to provide, support, and improve the Service. Flozio shall be responsible for the compliance of Flozio Providers with the provisions of this Agreement.

7. CONFIDENTIALITY 

7.1. Non Disclosure of Confidential Information.  During the Term of the Agreement and for a period of one year thereafter; except for trade secrets which shall be held in confidence for as long as they constitute trade secrets, and confidentiality obligations as required by applicable law; the Receiving Party that receives Confidential Information (as defined below) of the Disclosing Party, will not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees, contractors, or representatives of the Receiving Party with a need to know for purposes of the Agreement and who are subject to confidentiality obligations no less strict than the terms of the Agreement (“Representatives”), any Confidential Information disclosed to the Receiving Party by or on behalf of the Disclosing Party. The Receiving Party will safeguard disclosure of such Confidential Information to the same extent that Receiving Party safeguards its own Confidential Information, but in any case will at a minimum use reasonable care. Upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy, certifying in writing to the Disclosing Party the destruction of such Confidential Information, the Disclosing Party’s Confidential Information in its possession or under its control. 

7.2. Definition of Confidential Information. “Confidential Information” means all information of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of the Agreement, the Services, data, and all information relating to the Disclosing Party’s business plans, marketing plans, customers, technology, product designs, product plans, and financial information. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or tortious act and without breach of any obligation owed to the Disclosing Party or any other party, (iv) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party will, unless prohibited by law, notify the Disclosing Party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the Disclosing Party, or (v) was independently developed by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information. 

7.3. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ directors, officers, employees, and contractors who need that access for purposes of performing under this Agreement and who have signed confidentiality agreements with the Receiving Party. Neither Party will disclose Confidential Information (including but not limited to the terms of this Agreement or any Order Form) to any third party without the written consent of the Disclosing Party other than to its Affiliates solely as needed to perform its obligations under this Agreement, legal counsel, auditors, professional advisors, and accountants who have agreed to confidentiality obligations protective of the Disclosing Party’s Confidential Information in writing or who have a statutory/regulatory obligation of confidentiality. The Receiving Party will remain responsible for such Affiliate’s, legal counsel’s, auditor’s, professional advisor’s, or accountant’s noncompliance with this Section 7.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so. 

8.2. Flozio Warranties. Flozio warrants that (i) it will perform the Services in accordance with the current Agreement as may be updated from time to time: (ii) it will provide the Services in a professional manner and consistent with recognized industry security standards and good commercial practices; (iii) it will comply with all applicable law, and will be duly licensed and authorized to provide the Services; and (iv) it has the authority and right to observe and perform its obligations contained in the Agreement.

8.3. Service Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE AND EXCLUSIVE WARRANTIES AND WARRANTY REMEDIES ARE AS SET OUT IN THIS SECTION AND, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES INCLUDING ALL FUNCTIONS THEREOF, ARE PROVIDED ON AN ‘AS IS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. FURTHER, FLOZIO DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. 

8.4. Additional Disclaimers. FLOZIO IS NOT RESPONSIBLE FOR DATA QUALITY ISSUES OR LOSS OF DATA AND CUSTOMER WILL MAINTAIN BACKUP COPIES OF CUSTOMER DATA ON CUSTOMER’S OWN SYSTEMS. FLOZIO IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS. FLOZIO HAS NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY APPLICATIONS.

9. MUTUAL INDEMNIFICATION 

9.1. Indemnification by Flozio. Flozio will defend Customer, Customer Affiliates, and their officers, directors, employees, agents, and contractors (“Customer Indemnified Parties”) from and against any claims, demands, suits, or proceedings brought by a third party (“Claims”) alleging that Customer’s authorized use of Subscription Services or Professional Services infringes such third party’s valid patent, copyright, or trademark. Flozio will indemnify and hold Customer Indemnified Parties harmless from and against any liability, damages, and costs (including, without limitation, reasonable attorney’s fees) incurred in connection with such Claims. Notwithstanding the foregoing, if Flozio reasonably believe that Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation, or misappropriation of any third party intellectual property rights then Flozio may, at Flozio expense and in Flozio sole discretion: use commercially reasonable efforts to (i) procure for Customer the right to continue using the Services; (ii) replace the same with other non-infringing software or services of substantially equivalent functions; or (iii) modify the applicable software or services so that there is no longer any infringement, violation, or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Flozio opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Flozio may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination. The foregoing indemnification obligation will not apply: (1) if the Services are modified by any party other than Flozio, to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other products, applications, or processes not provided by Flozio, to the extent the alleged infringement is caused by such combination; (3) to Claims arising out of any unauthorized use of the Services; (4) to Claims arising out of any Third Party Applications; or (5) to Claims arising out of Customer Data. THIS SECTION 9.1 SETS FORTH FLOZIO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

9.2. Indemnification by Customer. Customer will defend and hold Flozio and our Affiliates, employees, directors, officers, agents, successors and assigns, harmless at Customer’s expense, against all third party liability; including, but not limited to damages, recoveries, deficiencies, interest, legal fees, and penalties; directly or indirectly arising from or in connection with Customer’ Data, Customer’s violation of any third party rights, and Customer’s use of Services contrary to the Agreement.

9.3. Procedures. Each Party’s indemnity obligations are subject to the following: (i) the indemnified Party will promptly notify the indemnifying Party in writing of the applicable Claim; (ii) the indemnifying Party will have sole control of the defense and all related settlement negotiations with respect to the Claim, provided that the indemnifying Party may not settle any Claim unless it unconditionally releases the indemnified Party of all liability and receives indemnified Party written approval (which will not be unreasonably withheld) of any conditions imposed by the settlement, if applicable; and (iii) the indemnified Party will cooperate fully to the extent necessary and as requested in the Claim investigation, defense, and trial (including any appeal arising therefrom), and execute all documents necessary for the defense of such Claim.

10. LIMITATION OF LIABILITY 

10.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. However, the foregoing limitations shall not apply to (a) liability for personal injury; (b) liability arising out of gross negligence or willful misconduct; or (c) Customer payment obligations under this Agreement. The limitation of liability provided in this section will apply in the aggregate to Customer and your Affiliates and shall not be cumulative. Flozio and Customer agree that this section is to provide for the allocation of risk and limit potential liability given the feed paid which would have been substantially more if the parties were to assume any further liability than provided for herein.

10.2. No action against Flozio arising out of this Agreement may be brought more than one (1) year after the cause of action has arisen. 

10.3. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. TERM AND TERMINATION 

11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Services hereunder have been completed and/or all subscriptions have expired, unless earlier terminated pursuant to Section 11.3. 

11.2. Term of Subscription Services and Renewals. The term of each Subscription Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter) (“Renewal Term”), unless either Party gives the other notice of non-renewal between 120 days and 60 days before the end of the relevant subscription term.

11.3. Termination. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such notification period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Flozio reserves the right to suspend or terminate Services in whole or part at any time, with or without cause, and with or without notice, without incurring liability of any kind. Flozio may suspend or terminate Customer’s use for non-compliance with the Agreement, or if Customer uses the Services in any way that may cause Flozio legal liability or disrupt others’ use of the Services or damage to Flozio’s business or reputation, or for any other reason. If Flozio suspends or terminates Customer’s use, Flozio will attempt to notify Customer in advance and assist in data retrieval, although there may be some cases including, but not limited to repeated or flagrant violation of the Agreement, a court order, or danger to other users, where Flozio may suspend or terminate immediately. Customer acknowledges that if access to Services are suspended or terminated, Customer may no longer have access to Customer’s Data that is stored with the Service.

11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 11.3 (Termination), Flozio will refund Customer any prepaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Flozio in accordance with Section 11.3, Customer will pay any unpaid Fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of Customer obligation to pay any Fees payable to Flozio for the period prior to the effective date of termination. 

11.5. Customer authorizes Flozio to retain Customer Data for 30 days after any termination or expiration of this Agreement. Notwithstanding the foregoing, following any such termination or expiration, Flozio has no obligation to maintain Customer Data. Upon request, Flozio will delete or destroy all copies of Customer Data in Flozio systems or otherwise in Flozio’s possession or control, unless legally prohibited. 

11.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Service Disclaimers,” “Additional Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Notices, Governing Law and Jurisdiction,” and “General Provisions,” and Section 11.5 will survive any termination or expiration if this Agreement.

12. MODIFICATIONS

12.1. Modifications. Flozio may revise these Terms of Service from time to time and the most current version will be posted on its website. Flozio will notify Customer of any change via the email address associated with Customer’s account or by a notification at sign in to Customer’s account. By continuing to access or use Services after the effective date of revisions, Customer agrees to be bound by the revised Terms of Service.

13. FEEDBACK

13.1. Feedback. Any feedback, comments, and/or suggestions about Services (“Feedback”) may be used in any manner without any obligation. Customer agrees that Flozio may freely use, disclose, reproduce, license, distribute, or otherwise exploit in any manner any Feedback you post in our forums or otherwise provide to us about our Services without any obligation to you, restriction of any kind, and without paying any compensation to you or any third party.

14. COPYRIGHT POLICY

14.1. Copyright Policy. Flozio will respond to notices of alleged copyright infringement that comply with law. Flozio may delete or disable access to content that is alleged to be infringing and terminate repeat infringers without limiting any other rights we may have.

15. OTHER CONTENT

15.1. Other Content. The Services may contain links to resources of others. Flozio does not endorse and is not responsible or liable for others’ accuracy, availability, content, products, services, or anything else. Customer is solely responsible for use of any such resources.

16. NOTICES, GOVERNING LAW AND JURISDICTION 

16.1. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer. Notices to Flozio should be addressed to Flozio, Inc., 2293 SW Import Dr. Port Saint Lucie, FL 34953

16.2. Governing Law and Jurisdiction. Each Party agrees to the governing law of the State of Delaware without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in Delaware.

17. TERMINATION | SUSPENSION OF SERVICE

17.1. Termination | Suspension of Service. If Flozio determines in its sole discretion that Customer or any of Customer’s Authorized Users have violated any element of these Terms, Customer or Customer’s Authorized User's access may be immediately suspended or terminated, up to and including the termination of the Agreement by Flozio, with or without notice. Flozio shall not be liable for any damages of any nature suffered by any user, or any third party, resulting in whole or in part from Flozio's exercise of its rights under these Terms.

18. ACCOUNT SECURITY 

18.1. Account Security. Customer is responsible for keeping the password that Customer uses to access the Services secure and Customer agrees not to provide your password to any third party. Customer is responsible for all activity using your account, whether or not authorized by Customer. Accordingly, Customer should notify Flozio immediately of any unauthorized use of Customer’s account. Customer acknowledges that if Customer wishes to protect Customer’s Data when transmitting it to Flozio, other than via the Flozio Services, it is Customer’s responsibility to use a secure encrypted connection to do so.

19. SOFTWARE AND UPDATES

19.1. Software and Updates. Some parts of Flozio’s Services may require you to download a client software package ("Software"). Subject to your compliance with the Agreement, Flozio hereby grants you a limited, nonexclusive, non transferable, non sublicensable, revocable license to use the Software, solely to access the Services. This license will be automatically revoked if you violate the Agreement. We reserve all rights not explicitly granted in the Agreement. Customer must not attempt to reverse engineer the Software or encourage or assist anyone else to do so; however, this restriction will not prohibit reverse engineering for interoperability in the European Union to the extent European Union law forbids such a restriction. The Services may automatically update the Software on your device when a new version becomes available.

20. GENERAL PROVISIONS 

20.1. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. 

20.2. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Flozio employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Flozio. 

20.3. Entire Agreement and Order of Precedence. This Agreement incorporates any exhibits, appendices and other documents referenced in it including, but not limited to if applicable, the Data Processing Addendum. This Agreement, together with each Order Form, is the entire agreement between the Parties regarding the use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Flozio may modify this Agreement by updating the Agreement as it appears on Flozio’s website. Additionally, the Parties may modify or amend this Agreement in a written instrument signed by both Parties. Changes or amendments to Order Form(s) may be accomplished only in a written instrument signed by both Parties. The Parties agree that any term or condition stated in Customer purchase order, supplier information/setup or similarly titled forms, invoice management platforms, or in any other of Customer’s order documentation (excluding Order Forms) is void, including where such order, form, or other documentation is signed by Flozio. In the event of any conflict between any provision of this Agreement and an Order Form, the terms of the Order Form shall prevail with respect to the matters covered by the applicable Order Form. 

20.4. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), following written notice to but without the other Party’s consent (i) to its Affiliate, (ii) in connection with a merger, acquisition, corporate reorganization, or (iii) in connection with the sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. 

20.5 Marketing. Customer agrees (a) that Flozio may identify the Customer as a Flozio Customer or User across Flozio’s marketing materials, promotional presentations, customer lists, website and other written and electronic materials (name and logo), and (b) upon reasonable request, to provide input towards and/or participate in Flozio’s marketing and promotional activities. Where any Customer trademark or logo is used, such usage shall at all times be subject to any trademark or logo usage guidelines that Customer has provided to Flozio. 

20.6. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. 

20.7. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. 

20.8. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. 

20.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void or, preferably, ‘blue-penciled’ and scaled back until it is no longer contrary to law and as closely as in accordance with the intent as possible, and the remaining provisions of this Agreement will remain in effect. 

20.10. Language Translations. This Agreement, appendices, schedules or referenced pages (including Documentation) are made in English. Although Flozio may, from time to time, and at its own discretion provide translation into other languages, these are provided for convenience and informational purposes only. In case of any inconsistency or discrepancy between original English texts and their translation into any language, the original versions in English shall prevail.

20.11. Neither Party will be liable for any delay or default in its performance of any obligation under the Agreement, other than a payment obligation, caused directly or indirectly by act of God, acts of government, fire, flood, strike, lockout or other labor issue, inability or delay to secure labor, materials, supplies, transportation, or energy, failures of suppliers, war, riot, civil disturbance, or any cause beyond the Party’s reasonable control. This provision does not impair either Party’s right to terminate the Agreement. 

20.12. Flozio’s non-enforcement of a provision is not a waiver of its right to do so later.

Addendum: DIALER PLAN

This Addendum applies if Customer uses or has obtained the right to use a specific type of Subscription Service, enabling Customer to make calls or send text messages to Customer customers and prospective customers via the Flozio platform. 

Definitions “Dialer Services” are defined as any Services through which Customer can make phone calls without being separately billed based on actual usage, which at the time of execution of this Agreement includes all Services offerings. 

“Dialer Users” are defined as individual Users for whom you have obtained the right to use Unlimited Dialer Services.

“Excessive Use” is defined as a month where Customer’s total usage of the any Dialer Services is greater than 2,000 minutes per Dialer User, provided that all such minutes are pooled (i.e. if you have ten (10) Dialer Users, Customer may use up to 20,000 minutes per month).

Team Excessive Usage Rules. If Customer engages in Excessive Use of the Dialer Services during any month during any rolling twelve (12) month period, Flozio may charge for excess usage beyond the permitted usage as set forth in the Excessive Use definition above.

Prohibited Uses. Customer shall not use dialer services in the following ways:

• to re-sell voice services;
• making calls other than for normal business purposes to artificially increase call volumes;
• in a manner that is threatening, abusive, harassing, defamatory, libelous, deceptive or invades another person's privacy;
• that violates any local, state, federal, national or international laws, rules, or regulations or otherwise exposes Flozio to criminal liability; or
• in a manner that adversely affects the Flozio Services or other customers.

Service Operations. Flozio may reclaim phone numbers provided to Customer if unused, or substantially underused, for sixty (60) days, or if rights to access and/or use of the Services is otherwise suspended, terminated, or canceled.

Flozio may be required to reclaim phone numbers with, or without notice, if their usage is determined to be out of compliance with any applicable laws or regulations (for example, national telecommunications regulations).

Flozio may block calls to certain phone numbers at any time without advance notice if Flozio determines it is necessary to protect the Flozio Services, employees, customers, or third parties from harm, fraud, and/or if required by applicable laws, rules, or regulations.

Service Limitations.  Flozio Dialer is not intended for making calls to any emergency services (for example, 911 or E911 calls). You are responsible for ensuring that all employees, agents, and other persons utilizing Flozio Dialer are aware of this limitation and for providing appropriate emergency calling capability. Flozio is not liable for any claims, damages or losses, and users hereby waive any and all such claims or causes of action, arising from or relating to use of Flozio Dialer to make emergency calls.

You must use Flozio Dialer in compliance with applicable laws, rules, and regulations, and must ensure that proper consent to record phone calls is obtained prior to making any such recording in accordance with applicable laws, rules, and regulations. While Flozio Dialer provides features to help you comply with call recording laws, regulations and rules, Flozio makes no representations or warranties with respect to call recording.  

Flozio reserves the right at all times to disclose any information if required by applicable law, regulation, legal process or governmental request.

Customer agrees to indemnify, defend and hold harmless Flozio and its officers, directors, owners, employees, agents, consultants and vendors from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys fees) that may be incurred by Flozio arising out of or related to users' acts or omissions in connection with Flozio Dialer, including any action arising out of the fact that Flozio Dialer does not support or carry emergency calls, whether such claims arise under contract, tort, statute or other legal theory.