These Terms of Service (“Terms”) govern your use of and access to Flipturn’s Services, Software, applications, tools, features, and other products that are made available through the website Flipturn | Home (getflipturn.com) (“Site“) or otherwise made available by Flipturn. Before you use the Site, please read these Terms carefully because these Terms are a legal agreement between you, (referred to as “Customer” and/or “Representative”), and Flipturn, Inc. (referred to as “Flipturn”, “we”, “our”, or “us“) (individually “Party” and collectively the “Parties”). By accessing or using the Site or Services, accepting (including by clicking to accept or agree when the option is made available to you) any Terms, purchasing the Services, executing an Order or other contract that references these Terms, you accept and agree to be bound and abide by these Terms. If you do not agree with any of these Terms, you may not access or use the Site for any purpose. 

1. ORDER OF PRECEDENCE. 

These Terms including the documents referenced herein shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Customer. Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply: The terms of an Order, where either: (i) these Terms expressly provides for the parties to optionally deviate from these Terms; or (ii) an Order states that the parties wish to deviate from the Terms for the purpose of the individual transaction and the parties expressly accept the deviation; The terms of any exhibit to these Terms; and The main body of these Terms.

2. CUSTOMER USE.

If you are accepting these Terms for yourself or on behalf of your employer or another entity for use of the Services (“Customer“), you represent and warrant that (a) you have the legal authority to bind the applicable entity to these Terms, (b) you are 18 years old or older, and (c) you agree to these Terms. If you don’t have the authority to bind your employer or the entity you represent to these Terms, you should not click the checkbox or button, countersign these Terms, or purchase or use the Services in any manner. If you accept these Terms to use the Services as a Customer with an account, you agree that you have the legal authority to agree to these Terms.

2.1 Customer Responsibilities.

Customer is responsible for all of its use of the Services. Customer is responsible for (a) obtaining the required authorizations from any employee and/or third party necessary for Flipturn to collect the Customer Information and (b) complying with all relevant laws to allow the operation of the Services, collection of Customer Information, and permission for Flipturn to process, store, and transfer Customer Information. Customer is responsible for its own software, network and internet connection costs related to its use of the Services. Although the Services are intended to provide guidance on many aspects of Customer’s fleet operations, Customer is solely responsible for the operations it chooses to implement. Customer acknowledges that the Services provide guidance and Customer is responsible for managing its operations.

2.2 Account Management. 

Customer is responsible for designating Representatives for its Services accounts, maintaining updated Representative contact information, and managing access by Representatives to Customer Accounts. Representatives may have the ability to access, disclose, monitor, restrict and/or remove Customer Information and terminate access to Customer’s accounts. Flipturn is not responsibile for Customer’s management of the Services.

2.3 Restrictions.

Customer will not and will not allow any third party to: (a) transfer license keys to any other person or entity; (b) violate or circumvent any technological use restrictions in the Service; (c) reverse engineer, decompile, disassemble, decipher or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (d) modify or remove any proprietary notices or marking on or in the Services; (e) modify or create derivative works based on the Services; (f) attack or attempt to undermine the security, integrity, authentication or intended operation of the Service; (g) sell, resell, license, copy, rent, lease, distribute, or share the Services for the benefit of a third party; (h) use the Services to create any competitive or other product or service; (i) use the Services for the purpose of benchmark testing or to research the features and functions of the Service; or (j) use, sell, copy, modify, create derivative works, publicly display, or distribute in any way the Flipturn Technology outside of the Services, except for regulatory compliance purposes or otherwise with Flipturn’s express consent.

Customer is prohibited from: (1) attempting to use or gain unauthorized access to Flipturn or to any third party’s networks; (2) attempting to probe, scan, or test the vulnerability of Software or a system, account, or network of Flipturn or any of its customers or suppliers; (3) interfering or attempting to interfere with service to any user, host, or network; (4) transmitting unsolicited bulk or commercial messages; (5) restricting, inhibiting, or otherwise interfering with the ability of any other person, regardless of intent, purpose, or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (6) restricting, inhibiting, interfering with, or otherwise disrupting or causing a performance degradation to any Flipturn facilities used to deliver the Services.

Flipturn may suspend Customer’s right to use the Services and will use commercially reasonable efforts to provide prior notice of a suspension if: (i) Customer’s use of the Services could subject Flipturn to liability; (ii) Customer’s use of the Services poses a security risk to the Services or may adversely affect the Services, Flipturn’s systems and/or infrastructure, Flipturn’s reputation, or a third party; (iii) Customer violates any applicable law or regulation, or these Terms; or (iv) late and/or non-payments in breach of these Terms.

2.4 Third Party Products.

Except as agreed in writing between Customer and Flipturn, Third Party Products shall be exclusively subject to terms and conditions between the third party and Customer. If Customer uses any Third Party Products, Customer is solely responsible for complying with licenses for Third Party Products and paying fees for such products. Customer bears all risks associated with using and/or relying on Third Party Products. Customer acknowledges and agrees that (a) it must use its own discretion when accessing or deploying Third Party Products and (b) Flipturn does not own or control any Third Party Products. Customer acknowledges that if it has a relationship with a Third Party Product, Flipturn may rely upon such representations from Customer and/or the Third Party Product company concerning its authority to access Customer Information. Flipturn will not be liable for any act or omission of Third Party Products or any adverse effect any Third Party Product may have on the Services, including the Third Party Product’s access to or use of Customer Information, other information or reports. These Terms do not create any rights for any person who is not a party to it, and no person who is not a party to these Terms may enforce any of its terms or rely on any exclusion or limitation contained in it.

2.5 Compliance.

Each party, at its own expense, will comply with all applicable laws, orders and regulations of any governmental authority with jurisdiction over its activities in connection with these Terms. Each party will provide the other party with any information required to enable the other party to comply with applicable laws and regulations related to the Services. Parties acknowledge that the Services provided under these Terms (a) are subject to U.S. and European customs and export control laws, (b) may be rendered or performed in countries outside the U.S. or Europe, or outside of the borders of the country in which Customer is located, and (c) may also be subject to the customs and export laws and regulations of the country in which the Services are rendered or received. Under these laws and regulations, the Services purchased under these Terms may not be sold, leased or otherwise transferred to restricted entities or countries. Additionally, is Customer’s sole responsibility to maintain compliance standards for International Fuel Tax Agreement (“IFTA”) filing and the Federal Motor Carry Safety Administration (“FMCSA”) Hours of Service for drivers.

Flipturn may monitor Customer Information during the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements and shall have the right (but not the obligation) to refuse, move or delete any such content that is made available via the Service. Flipturn may disable access to any Customer Information, at any time with notice, if practical, including if Flipturn reasonably believes Customer Information to be in violation of these Terms or to comply with Flipturn’s legal obligations. 

3. LICENSE TERMS.

Subject to and in consideration of your full compliance with these Terms, Flipturn grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license for Customer to access and use the Software for internal business operations during the Services Term and and solely as necessary for Customer to enjoy the benefit of the Services.

Except for the limited licenses granted to Customer in these Terms, Flipturn and its licensors own and reserve all right, title, and interest in and to the Flipturn Technology and in all related materials (“Works”). Flipturn retains ownership of the Works and all related intellectual property rights.

Customer grants Flipturn, or its agent, the right to perform an audit of its use of the Software during normal business hours. Customer agrees to cooperate with such audit and to provide reasonable access to all records related to the use of the Software. The audit will be limited to verification of Customer’s compliance with the terms of usage relating to such Software under the Agreement.

The Software may contain or consist of open source software, which is subject to the terms and conditions of the specific license under which the open source software is distributed. Any open source software used by Flipturn in connection with these Terms is provided "as is" without any warranty/condition, express, implied, or otherwise, including, without limitation, implied warranties/conditions as to satisfactory quality, merchantability or fitness for a particular purpose, or any warranty/condition regarding title or non-infringement.

3.1 Third Party Use. 

Customer may allow contractors (each, a “Permitted Third Party”) to use the Software solely for the purpose of providing services to Customer, provided that such use is in compliance with these Terms. Customer is liable for any breach of these Terms by any Permitted Third Party.

3.2 Customer License.

As between Flipturn and Customer, Customer shall own and reserve all right, title, and interest in and to the Customer Information. Customer grants Flipturn, its affiliates, and its contractors (e.g., hosting) a worldwide, irrevocable, perpetual, non-exclusive, right to: (a) use, copy, distribute, create derivative work,s and display Customer Information in order to provide, analyze, support, operate, and improve the Services and its affiliates’ services, and in order to develop new products and services (b) as well as for any other lawful purpose authorized by Customer. Flipturn may submit Customer’s contact information and billing information related to the timeliness of Customer’s payments to credit rating, credit reporting, or similar agencies. Flipturn does not sell any Customer Information to third parties and does not share any Customer Information in any manner that is not otherwise permitted for the business reasons provided herein.

3.3 Flipturn Data.

Flipturn may use and distribute the Flipturn Data (a) to provide, analyze, operate, and improve the Services and develop new products and services, (b) to create and distribute reports and materials about the Services, and (c) for any other lawful purpose. Flipturn owns and reserves all rights, title, and interest in and to the Flipturn Data.

3.4 Feedback & Publicity.

Customer may submit feedback by emailing Flipturn at support@getflipturn.com. Customer agrees that by submitting suggestions or other feedback regarding the Services, Flipturn may use such feedback for any purpose without limitation or compensation to Customer or Representative. If Customer chooses to submit feedback or suggestions, Flipturn has ownership of any such feedback and suggestions. Feedback and suggestions are not Confidential Information. Customer agrees that Flipturn may use its name and logo in its sales and marketing communications on Flipturn’s website.

4. PRIVACY & SECURITY.

4.1 Privacy.

By using the Site, Customer agrees to be bound by the Privacy Policy posted on the Site, which is incorporated into these Terms.

To the extent Flipturn processes personal data or sensitive personal data for Customer under or in connection with these Terms, Flipturn shall comply with applicable legal requirements for privacy, data protection and confidentiality of communications. Such applicable legal requirements include the Standards for the Protection of Personal Information of Residents of the Commonwealth of Massachusetts (201 CMR 17.00), the California Consumer Privacy Act of 2018 (the “CCPA”), and other applicable United States data protection laws at the state level, and implementing national legislation, and Regulation 2016/679 (also known as GDPR), if applicable. Flipturn shall not (i) sell personal data as defined under the CCPA, or (ii) retain, use, or disclose personal data for any purpose other than for the specific purpose of providing the Services. 

The Customer shall comply with the provisions and obligations imposed by all applicable laws and obtain all necessary authorizations and consents for lawful processing, prior to passing any personal data including all sensitive personal data of any natural person, to Flipturn. Such authorizations/consents shall also include specific authorization for Flipturn to, in the normal course of its business, make worldwide transfers of personal data or sensitive personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data or sensitive personal data. Flipturn shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by Flipturn to the extent that such action or omission resulted from compliance by Flipturn with Customer's instructions

Parties agree that Customer Information may be transferred to, and maintained on, computers located outside of Customer’s state, province, country or other governmental jurisdiction where the data protection laws differ from those in the Customer’s jurisdiction of residence. If Customer is located outside of the United States and chooses to provide Customer Information to Flipturn, the parties agree to use legally recognized mechanisms to permit the transfer of Customer Information to the United States. 

4.2 Security.

Flipturn has implemented and maintains appropriate technical and organizational security measures to protect the confidentiality, integrity, and security of Customer Information.

5. MAP SERVICE TERMS.

The Services may incorporate certain Google Maps features and content; and your use of Google Maps features and content is subject to the then-current versions of the Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html.

6. FEES & PAYMENT.

6.1 Fees.

In consideration for the access rights granted to Customer and the Services performed by Flipturn under these Terms, Customer shall pay to Flipturn the (“Fees”). Except as otherwise provided in the Order, all Fees are payable in advance on the first of each calendar month. In the event the term commences in the middle of the calendar month, then the Fees for such month will be pro-rated based on the number of days in such month. Flipturn reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. Flipturn will be reimbursed only for expenses that are expressly provided for in an Order or that have been approved in advance in writing by Customer. Flipturn reserves the right (in addition to any other rights or remedies Flipturn may have) to discontinue the Services if any Fees are more than sixty (60) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. If the Customer requires the use of a purchase order or purchase order number, the Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to, supersede, or add to these Terms or any Order and are otherwise void.

6.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Flipturn’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services to Customer. Customer will make all payments of Fees to Flipturn free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Flipturn will be Customer’s sole responsibility, and Customer will provide Flipturn with official receipts issued by the appropriate taxing authority, or such other evidence as the Flipturn may reasonably request, to establish that such taxes have been paid.

6.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

6.4 Free Trials & Beta 

Unless the Parties have entered into a separate written agreement, Flipturn reserves the right to terminate access to Services provided on a free or trial basis.  Any free trial or other promotion that provides access to free Services must be used within the specified time of the trial as communicated by Flipturn. 

Notwithstanding anything herein, Customer acknowledges that (a) Customer has the sole discretion whether to use any beta products and/or features (“Beta”), (b) Beta is provided “as is”, (c) Beta may not be supported and may be changed by Flipturn at any time, including in a manner that reduces functionality, and (c) Beta may not be available or reliable.

8. TERM AND TERMINATION OF SUBSCRIPTION.

These Terms will continue in full force and effect, unless earlier terminated in accordance with these Terms. Unless otherwise stated in the applicable Order, an Order will begin on the effective date of the Order and continue for twelve (12) months (“Initial Term”) and automatically renew at the end of the Initial Term for successive renewal periods of twelve (12) months (each a “Renewal Term”) at the then current non-promotional rate (“Renewal Rate”), unless Customer provides at least thirty (30) days’ notice of non-renewal prior to the date of renewal, or unless earlier terminated in accordance with these Terms. The term of an Order may be renewed at the mutual written agreement of the parties. 

8.1 Termination for Breach

Either Party may terminate these Terms and any applicable Services if (a) the other Party is in material breach of these Terms and fails to cure such material breach within thirty (30) days after receipt of written notice of such material breach, or (b) the other Party ceases its business operations or becomes subject to insolvency proceedings. Flipturn may also terminate these Terms if it has the right to suspend the Services or to comply with any applicable law or regulation.

If termination is by Customer for cause due to Flipturn’s material breach hereunder, Customer will owe no further fees except those that have accrued up to the date of such termination and Customer will receive a pro rata refund of any fees paid in advance for Services not yet received as of the date of termination.

8.2 Customer Termination For Convenience

If Customer chooses to cancel or terminate any Services, Order, or these Terms before the end of the applicable subscription term, Customer must provide notice at least thirty (30) days prior to the proposed termination date. After the notice of early termination has been provided to Flipturn, any amounts owed to Flipturn under these Terms and the subscription term will become immediately due and payable.

8.3 Effect of Termination

If these Terms expire or are terminated, (a) the rights granted by one Party to the other will cease immediately except as otherwise set forth in this section, (b) Flipturn will have no obligation to maintain Customer Information and may delete any copies of Customer Information, and (c) the following sections will expressly survive: 3.3 (Flipturn Data), 7 (Fees & Payment), 8.3 (Effect of Termination), 9 (Warranty & Disclaimers), 10 (Indemnity), 11 (Limitation of Liability), 12 (Arbitration), 13 (Miscellaneous), 14 (Definitions), and any other term which by its nature would survive termination.

9. WARRANTY & DISCLAIMERS.

9.1 THE FLIPTURN SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FLIPTURN MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, TIMELINESS, OR TRUTHFULNESS OF ANY FLIPTURN TECHNOLOGY.   CUSTOMER IS SOLELY RESPONSIBLE FOR (AND FLIPTURN DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER’S INSTALLATION OF THE SOFTWARE, CUSTOMER’S USE OF THE SERVICES, CUSTOMER’S VEHICLES, AND INTERNET CONNECTIVITY. PROVIDED HOWEVER, IF FLIPTURN OR A FLIPTURN CONTRACTOR INSTALLS THE SOFTWARE, FLIPTURN WARRANTS THAT SUCH INSTALLATION WILL BE COMPLETED IN A PROFESSIONAL MANNER.

9.2 TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS SET FORTH IN THESE TERMS AND ALL INCORPORATED DOCUMENTS, FLIPTURN AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE REGARDING THE FLIPTURN SERVICES AND ANY OUTPUT FROM THE FLIPTURN SERVICES, AND (B) DISCLAIM ALL WARRANTIES OF (I) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, AND NON-INFRINGEMENT, (II) ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR (III) THAT THE FLIPTURN SERVICES OR OUTPUT ARE COMPLETELY SECURE, ERROR-FREE OR UNINTERRUPTED.

9.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE TO SOLELY AID THE CUSTOMER’S DRIVER. USING THE SERVICES ARE NOT A SUBSTITUTE FOR SAFE AND CONSCIENTIOUS DRIVING. THE SERVICES REQUIRE A DRIVER THAT IS NOT UNLICENSED, DISTRACTED, INATTENTIVE, OR IMPAIRED BY DRUGS, ALCOHOL, FATIQUE, OR OTHERWISE. IT IS THE DRIVER’S RESPONSIBILITY TO AVOID ACCIDENTS. DRIVERS SHOULD NOT WAIT FOR THE SERVICES TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT OR ANY VIOLATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE WHILE DRIVING IS INADVISABLE AND ILLEGAL IN MANY JURISDICTIONS.

9.5 CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR MATERIALS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, WEAPONS MATERIALS, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (“HIGH RISK ACTIVITIES”). FLIPTURN EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.

9.6 CUSTOMER ACKNOWLEDGES AND AGREES THAT: (1) FLIPTURN HAS NO CONTRACTUAL RELATIONSHIP WITH ANY WIRELESS PROVIDERS THAT CUSTOMER USES, (2) MESSAGES OR DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, AND 911 CALLS MAY NOT BE COMPLETED, AND (5) THE WIRELESS PROVIDERS CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND FLIPTURN WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE PROVISION OF SERVICES BY WIRELESS PROVIDERS.

9.7 IFTA Reporting

Customer accepts responsibility to ensure the accuracy and the suitability of fuel tax reports created by the Services before submitting them to any government agency. Flipturn is not responsible or liable for any issues incurred by using the Services for regulatory compliance. It is Customer’s sole responsibility to maintain compliance standards for IFTA filing purposes.

10. INDEMNITY

10.1 Customer Indemnity

Notwithstanding anything herein, Customer will indemnify, defend, and hold harmless Flipturn and its affiliates, officers, directors, employees, and agents (collectively “Flipturn Indemnified Parties”)  from and against all liabilities, damages, losses, and costs and expenses, including settlement costs and reasonable attorneys’ fees, arising out of third party claims, suits, or proceedings arising out of (i) Customer’s or Representative’s access to or use of the Services; (ii) Customer Information; (iii) Customer’s or Representative’s breach of these Terms, or (iv) negligent acts or omissions of Customer or Representative(s) (“Customer Indemnified Claim”).

Customer’s obligation to defend and indemnify Flipturn Indemnified Parties is excused only to the extent that the following materially prejudices Customer’s defense: (i) Flipturn fails to provide prompt notice to Customer of the Customer Indemnified Claim; and (ii) Flipturn fails to reasonably cooperate with Customer’s defense. Furthermore, Flipturn grants the sole control of the defense of the Customer Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof to Customer. Customer’s obligation to indemnify and defend includes: (1) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of attorneys’ fees, courts costs, and other reasonable expenses, and (2) reimbursement of reasonable attorneys’ fees incurred before Customer assumed the defense (but not attorneys’ fees incurred by the Flipturn Indemnified Parties thereafter).

10.2 Flipturn Indemnity

Notwithstanding anything herein, Flipturn will indemnify and defend Customer, and its affiliates, officers, directors, members, managers, employees, and agents (collectively the “Customer Indemnified Parties”), from and against liabilities, damages, losses, and costs and expenses finally awarded and reasonable attorneys’ fees, arising out of  third party claims, suits, or proceedings arising out of (a) Flipturn’s gross negligence, willful misconduct, or fraud or (b) infringement or misappropriation of any patent, copyright, or trademark with respect to the Services (“Flipturn Indemnified Claim”).

Flipturn’s obligations to defend and indemnify Customer Indemnified Parties is excused to the extent that the following materially prejudices Flipturn’s defense: Customer fails to provide prompt notice to Flipturn of the Flipturn Indemnified Claim; and Customer fails to reasonably cooperate with Flipturn’s defense.  Furthermore, Customer grants the sole control of the defense of the Flipturn Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof to Flipturn. Flipturn’s obligation to indemnify and defend includes: (i) settlement at Flipturn’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of attorneys’ fees, courts costs, and other reasonable expenses, and (ii) reimbursement of reasonable attorneys’ fees incurred before Flipturn assumed the defense (but not attorneys’ fees incurred by the Customer Indemnified Parties thereafter).

Flipturn has no obligation to indemnify Customer if a claim of infringement is caused by (1) Customer’s use of the Services in a manner prohibited by this these Terms; (2) Customer’s use of a modification or derivation of the Services not approved or provided by Flipturn; (3) Customer’s use of the Services in combination with any product, software, data or equipment not owned or developed by Flipturn where or such combination was not contemplated by these Terms, (4) Customer Indemnified Party’s failure to modify or replace Flipturn technologies as required by Flipturn, or (5) use of any Flipturn Technologies, products, or services provided to the Customer Indemnified Parties on a no charge, beta, or evaluation basis.

If claims arise that prevent the Customer from using the Services as contemplated under these Terms, or Flipturn reasonably believes such a claim may arise, in addition to Flipturn’s defense and indemnity obligations set forth in the preceding paragraph, Flipturn may, at its option: (x) secure the necessary rights and licenses for Customer to continue using the Services, (xx) modify the Services such that it is non-infringing, or (xxx) terminate these Terms (and, in such event, Flipturn will provide Customer with a pro-rata refund of any fees paid in advance for any access to the Services not yet provided). This section sets forth Customer’s sole remedy, and Flipturn’s exclusive liability, with respect to claims related to the infringement or violation of third party intellectual property rights.

11. LIMITATION OF LIABILITY

11.1 TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS, AND AGENTS WILL BE LIABLE UNDER THESE TERMS OR FROM USE OR INABILITY TO USE THE FLIPTURN SERVICES FOR (A) ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, (B) LOSS OF USE, DATA, REVENUE, BUSINESS, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), (C) LIABILITY FOR PROPERTY DAMAGE, OR (D) THE COSTS OF PROCURING REPLACEMENT SERVICE, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER THAT PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11.2 NOTWITHSTANDING ANYTHING HEREIN, AND WHERE PROHIBITED BY LAW, EITHER PARTY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, AND AGENTS’ MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY IS LIMITED TO THE LESSOR AMOUNT OF EITHER (A) THE FEES CUSTOMER HAS PAID OR IS PAYABLE FOR USE OF THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR (B) FIVE HUNDRED DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLIPTURN AND CUSTOMER. THESE LIMITATIONS ARE NOT APPLICABLE TO ANY EXPRESS INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN AND ANY CUSTOMER PAYMENT OBLIGATIONS IN THE EVENT OF A BREACH OR EARLY TERMINATION BY CUSTOMER.

12. ARBITRATION.

12.1 Governing Law. 

These Terms and your use of the Site are governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles.

12.2 Informal Negotiations. 

To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms and Conditions (each "Dispute" and collectively, the "Disputes") brought by either you or us (individually, a "Party" and collectively, the "Parties"), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

12.3 Binding Arbitration. 

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the AAA and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York County, NY. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in New York County, NY, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms. In no event shall any Dispute brought by either Party related in any way to the Site or Services be commenced more than one (1) year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

12.4 Restrictions. 

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding, (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures, and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

12.5 Exceptions to Informal Negotiations and Arbitration. 

The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

13. Miscellaneous.

13.1 Notices.

Notices provided by Flipturn to Customer will be given by Flipturn: (i) to the address and/or email address on file for Customer; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.  Notices provided by Customer to Flipturn must be sent to: (1) Flipturn 159 Court St Unit 3, Brooklyn, NY 11201 (2) with a copy to hello@getflipturn.com.

13.2 Assignment.

Neither Party may assign these Terms, Services, or any Order without prior written consent from the other Party, by operation of law or otherwise, except Flipturn may assign or transfer these Terms, Services, or any Order to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other attempt to assign or transfer without consent, will be null and of no effect.

13.3 Integration & Entire Agreement.

All attachments to these Terms and any Orders executed by the Parties are hereby incorporated into these Terms by reference. These Terms, including any such attachments and Orders, constitute the entire and exclusive understanding and agreement between Flipturn and you regarding the Services, and supersede and replace any and all prior or contemporaneous oral or written agreements between Flipturn and you regarding the Services.

13.4 Confidentiality.

Disclosure. The Party receiving Confidential Information agrees that, until such time as the Confidential Information enters the public domain through no fault of the receiving Party, the receiving Party will not, directly or indirectly, disseminate, or disclose any of the Confidential Information disclosed to it without the prior written consent of the disclosing Party to any third party except to Representatives who (a) have a need to know such information as required to perform duties under these Terms and (b) are subject to obligations of a confidentiality agreement directly with receiving Party containing obligations at least as restrictive as those contained herein or that are otherwise acceptable to disclosing Party; provided, however, the receiving Party will not disclose Confidential Information to any other person or entity that the receiving Party knows or should have reasonably known to be a competitor of the disclosing Party. “Representative” means, with respect to a Party, such Party’s affiliates and its respective officers, directors, trustees, employees, agents, professional advisors, non-employee staff, attorneys, financial advisors, accountants, and consultants.

Upon termination of these Terms, the receiving Party and its Representatives may retain copies of the Confidential Information for system archival purposes or if required by an applicable government or regulatory body as part of an active certification file, which at all times will remain subject to the obligations of the receiving Party as set forth herein. Notwithstanding the foregoing, the receiving Party and its Representatives may retain archival copies of the Confidential Information, which such Confidential Information will only be used by the receiving Party and its advisors in connection with the review of its obligations under this Agreement, with receiving Party’s retention policy, or for purposes of compliance with applicable law; and provided that receiving Party’s confidentiality obligations identified herein will remain in effect for as long as the Confidential Information is in the receiving Party’s custody. Both Parties to these Terms acknowledge that damages for the breach of this section may be difficult to ascertain; therefore, in the event of a breach by a Party to these Terms of the provisions of this Confidentiality section, the non-breaching Party, in addition to any other available remedies, will be entitled to preliminary and permanent injunctive relief against any breach or threatened breach of the covenants contained in this section. The Parties’ obligations under this section will survive the performance or any termination of these Terms for five (5) years.

13.5 Third Party Beneficiaries & Independent Contractors. 

There are no third party beneficiaries under these Terms. The parties are independent contractors. Neither party has the right to bind the other, and neither party will make any contrary representation to a third party

13.6 U.S. Embargo.

Customer represents and warrants that Customer is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties.

13.7 Force Majeure.

Except with respect to any payment obligations hereunder, neither Party will be liable to the other Party for inadequate performance to the extent caused by a reasonably unforeseeable condition (for example, natural disaster, pandemic, endemic, act of war or terrorism, labor disputes, governmental action, utilities failures, third party software or hardware, and internet disturbance) that was beyond its reasonable control, and which condition (a) has an adverse effect on such Party’s ability to perform its obligations under an applicable Order and/or these Terms and (b) is not the result of that Party’s negligence, fault, or failure to perform any of its obligations the applicable Order and/or these Terms. 

13.8 Severability.

If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.

13.9 Modifications.

Flipturn may modify these Terms periodically. If an update will materially affect your use of the Services or legal rights, Flipturn will notify you prior to the update’s effective date (except for changes due to legal or regulatory reasons, which may be effective immediately). Otherwise, updates will be effective as of the date posted on this website. By continuing to use the Services or executing additional Orders after the changes become effective, you agree to be bound by the modified Terms.

13.10 Waiver.

The Parties’ failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative. Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

13.11 Construction.

Any ambiguity in these Terms will be interpreted equitably without regard to which Party drafted the Terms. The terms “Including” and “include” will be construed to mean “including without limitation.”

13.12 Counterparts.

These Terms and any Order may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.

14. DEFINITIONS

“Representative(s)” means a person that the Customer designates to administer the Flipturn account and has access to permissions and other sensitive settings.

“Confidential Information” means any information of a party, in written, electronic or any other form or medium, regarding the business, projects, operations, finances, activities, affairs, research, development, products, technology, business models, plans and processes, marketing and sales plans, customers, employee data, applicant data, resume information, computer hardware, software, and systems, processing techniques and generated outputs, intellectual property, procurement processes or strategies or suppliers of a party or directors, officers, personnel or applicants, including, without limitation, any idea, proposal, plan, procedure, technique, formula, technology, or method of operation that is disclosed to the other party under these Terms and labeled or otherwise clearly identified as “confidential” or the equivalent at the time of disclosure or which, given the circumstances of disclosure, the receiving party would have reason to know the information is confidential or proprietary.

“Customer” means all authorized users of Flipturn Services including entities which are paying for and/or utilizing Flipturn Services.

“Customer Information” means any data and information Customer upload, transmits, generates, or submits to the Flipturn Software, including data and information from Third Party Products.

“Documentation” means any Flipturn provided written documentation and policies related to Flipturn’s provision of the Services.

“Flipturn Data” means usage data, statistics, aggregate data, and other de-identified data derived from Customer Information so that such data cannot be attributed to a particular Customer.

“Flipturn Technology” means the Services, Documentation, Flipturn Data, Flipturn API, Deliverables, Flipturn’s trademarks, logos, and other brand features, and any other data created from the Services.

“Hours of Service” means the maximum amount of time drivers are permitted to be on duty including driving time, and specifies number and length of rest periods, to help ensure that drivers stay awake and alert. In general, all carriers and drivers operating commercial motor vehicles must comply with Hours of Service regulations found in 49 CFR 395.

“Order” means any ordering document, ordering webpage, or other communication of ordering, in each case for the Services.

“Software” means the Site, fleet management and other software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as related documentation, provided by Flipturn to Customer, which includes software (1) provided by Flipturn and locally installed on Customer’s hardware and/or equipment or (2) made available by Flipturn and accessed by Customer through the internet or other remote means (such as websites, portals, and “cloud-based” solutions).

“Service(s)” means the (a) combined offerings of Software offered as a service or any related product offered by Flipturn, (b) support or other services described in an exhibit, attachment, or statement of work referencing the Order or the Terms, (e) the Software, by Customer under an Order or otherwise provided by Flipturn and used by a Customer or Representative under these Terms with the exception of Third Party Products.

 “Services Term” means the term of these Terms, which begins on the effective date of the Order and continues until the earlier of the expiration of Subscription Term or these Terms are otherwise terminated.

 “Subscription Term” means the initial term set forth in an Order and all renewal terms for the Services and any applicable renewal terms.

“Third Party Product(s)” Third Party Product(s) means any non-Flipturn branded products, software, websites, applications, or services either provided by the Customer or a third party.