Last updated: October 5, 2015.

Flox Consumer Terms of Service

These terms of service apply to users of the free flox application and the premium features version known as flox pro (collectively, the “app”). The terms of service applicable to flox customers follows below.

Please read the following flox terms of service (“agreement”) carefully before downloading and/or using the app), using the flox service or accessing the flox website (with any associated software, upgrades, and documentation provided by flox, the “service”). This agreement constitutes a legal agreement between you and flox llc, a wisconsin llc.

By downloading and/or using the service, you accept and agree to comply with this agreement, which will govern your use of the service, except as follows. If you have signed, or are an authorized employee or representative of an entity that has signed, a separate written agreement with flox regarding your use of the service, then the terms of that agreement shall be binding on you and (where applicable) that entity, and will govern your use of the service to the extent stated therein.

The service is only for individuals aged 13 or older; if you are 13 or older but under the age of 18, review these terms with your parent or guardian to make sure that you and your parent or guardian understand and agree to these terms. By accepting these terms you represent that you are not under the age of 13.

Services

Flox is a social networking service that permits authorized users to send text and image messages to other users or groups of users via a smart phone or other supported device using the Flox App (whether a separate application or Business login to the Flox App), whether mobile, web or desktop versions, (the “App”) (the Flox messaging service and the App together constitute the “Service”). Flox provides a web-based administrative console permitting entities to provision users and create user groups, and other such features and functions as Flox may provide from time to time (the “Flox Manager”). The Flox messaging service, the App and the Flox Manager together constitute the “Service”.

Licence

Subject to the terms of these TOS, Flox grants you a non-sublicensable, non-assignable, non-exclusive license to use the Service, including the App, for your personal purposes, in accordance with these TOS and the documentation or instructions supplied by Flox. If you elect to purchase the premium features offered in the Flox Pro upgrade, your license also includes your commercial use of the Service.

License Restrictions

You shall not (and shall not allow others to): (a) make the Service available over a network or other environment permitting use by multiple users or otherwise transfer or distribute the Service; (b) reverse engineer, disassemble or decompile the Service or otherwise derive or attempt to derive the source code or structure of the Service (except as and only to the extent any foregoing restriction is prohibited by applicable law); © modify, reproduce, or create derivative works of the Service; (d) remove any copyright or other proprietary notices contained in the Service (e) directly or indirectly export or re-export the Service; or (f) remove, circumvent, or interfere with any digital rights management or security tools or other similar technologies available on or in the Service.

Registration for Service and Flox Site

You are required to create an account to use the Service. You can also create an account on the Flox Site and use such accounts to obtain information and submit support questions about the Service. In creating an account you agree to provide truthful information; impersonating others or providing false information in connection with creating a user account is strictly prohibited. You agree (i) to provide accurate, current and complete information as may be prompted by Flox in connection with Customer’s registration for and use of the Flox Site and/or Service; (ii) to maintain the security of the identification and password associated with the access and use of the Flox Site and/or Service; and (iii) to immediately inform Flox if You become aware of any unauthorized access or use of the Flox Site and/or Service.

As part of your usage of our Service, we provide you the opportunity to connect automatically with your friends. We employ various techniques in order to facilitate friends finding each other on our service, including offering contact importer tools to facilitate adding to your contacts (including contacts in your address book) so that you can more readily ask your contacts to join and communicate with you through the Flox Service.

Restrictions on Use of the Services

You agree that you will not use the Services to: (a) upload or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited advertising, promotional materials, spam, chain letters, pyramid schemes or any other form of unsolicited messages, whether commercial or otherwise; harvest or collect data regarding other users, including e-mail addresses, without their consent; (d) attempt to gain unauthorized access to or interfere with servers or networks connected to or used with the Services or violate the policies of such networks; (e) harass or interfere with another user’s use and enjoyment of the Service; (f) impersonate any person or entity or misrepresent your relationship to or affiliation with a person or entity; (g) use the Service to post content in violation of the Restrictions on Content; or (f) engage in any illegal or unlawful activity, whether intentionally or unintentionally. In addition, you may not access or use the Service for benchmarking or similar purposes, except with Flox’s specific prior written consent.

Responsibility for Content and License

The Service enables users to transmit content, such as text and images (“User Content”). By uploading, transmitting or otherwise providing User Content via the Service, you represent that you own, or have the necessary rights to use, reproduce, and distribute, and to authorize Flox and other users to use, reproduce, and distribute, such User Content, and you grant Flox a non-exclusive, transferable, sub-licensable, royalty free, worldwide license to use, reproduce, and distribute any such User Content for purposes of providing, maintaining and improving the Service. Flox’s use of such content will be in accordance with its privacy policy: flox.io/privacy/

Restrictions on Content

You agree that you will not use the Services to upload, transmit, or otherwise provide any User Content (a) that violates any third-party right, including any copyright, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, vulgar, defamatory, misleading, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable; or in violation of any law, regulation, or obligations or restrictions imposed by any third party. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Flox. You agree that you will comply with the Digital Millennium Copyright Act (“DMCA”) and will act promptly to remove any infringing material from the Service if you or Flox receives a notice qualifying under the DMCA.

Visibility of and Storage of User Content

Content you send to other users will appear on other users’ devices and these communications are also stored in our database. Even if an Authorized User removes this content from his or her device or account, copies may remain viewable on the devices of other users to whom the content was transmitted and may remain stored in our database. Therefore, you should be aware that User Content that Users send to other users cannot be removed from their devices unless the other user removes the data. Other users may also share any User Content sent to them.

Review of and Deletion of Content

We have the right (but not the obligation) to review any User Content that is used with the Services and not post, delete or modify any User Content that in our sole judgment violates these TOS, or may otherwise violate the rights of, harm, or threaten the safety of any user or any other person or our systems, or create liability for us or any user. While we may store User Content, we also have no obligation to store User Content for any period of time or to create or provide you with any copies.

Third-Party Content

The Services may display, contain links to, or otherwise give you access to third-party communications, content, products, services or websites (“Third-Party Content”). You acknowledge that Flox does not monitor, investigate or endorse Third-Party Content. We do not control and do not guarantee the accuracy, integrity, or quality of such Third-Party Content. By using the Services, you may be exposed to content that is offensive, indecent or otherwise objectionable. Your access to and use of Third-Party Content is at your sole discretion and risk and Flox and its affiliates, partners, suppliers and licensors shall have no liability to you in connection with your access to and use of the Third-Party Content.

Intellectual Property

Except for the rights expressly granted herein, these TOS does not grant either party any rights, implied or otherwise, to the other’s content or other intellectual property.

Payment for Premium Features

As part of the Flox premium service, Flox may offer you access to additional features within the App via in-app purchase of a subscription to the premium service. Any additional features are included as part of the App and Service and are subject to these TOS. Payments for subscriptions and purchases are processed by the applicable app marketplace, including without limitation, the Apple App Store and Google Play, and not by Flox, and are subject to the terms and conditions of those third parties.

Please note that purchases within the Flox Pro App are final and non-refundable.

Flox may at any time, upon notice required by applicable law, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your subscription term will apply to subsequent subscription terms and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription via the app marketplace where you set up the subscription. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.

If you cancel or otherwise do not pay your subscription to Flox, your access to the premium features and service will be terminated.

Updates to the Service

Flox may extend, enhance or otherwise modify the Service or portions thereof (collectively, “Updates”) from time to time, but Flox is not obligated to do so. If Flox furnishes you with Updates to the Services, such Updates shall be deemed incorporated into the Services and shall be subject to the terms of these TOS.

Updates to these TOS. Flox reserves the right, at its sole discretion, to modify these TOS, at any time. If we modify these TOS we will update the “Last Updated Date” at the top of these TOS and provide you notice of the modification via email or via the Site and you agree that such notice is sufficient. By continuing to access or use the Product after we have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement.

Feedback

We may provide you with a means to provide feedback, ideas or suggestions (“Feedback”) regarding the Service. If you choose to provide Feedback, you agree that you retain no rights in such Feedback and Flox shall own all rights, including intellectual property rights, thereto. You hereby assign all such rights to Flox.

Communications

In order to perform to its specifications, the Services will regularly communicate with Flox and Flox affiliates’ hardware/software/servers during the normal course of operation and such hardware/software/servers will retrieve, process, transmit and store data received from the App and the devices on which the App is loaded (including voice conversations and text conversations). In addition, Flox may contact you via email, the Service or other contact information, in connection with the Service and these TOS, in accordance with the Flox privacy policy.

Data Collection and Privacy Policy

Flox will have access to User’s profile information and User Content. Additionally, Flox may itself gather and aggregate device data and user activity data. Details about Flox’s collection and use practices can be found at flox.io/privacy/.

User Content and Data

Subject only to the limited license expressly granted hereunder, as between you and Flox, Flox acquires no right, title or interest from you under these TOS in or to User Content or associated Customer data, including any intellectual property rights therein. You are solely responsible for User Content that you upload, publish, display, link to or otherwise make available on the Service, and you agree that Flox is only acting as a passive conduit and data processor for the online distribution and publication of User Content which you control.

Security

Flox has implemented commercially reasonable technical and organizational measures designed to secure User Content and associated data from accidental loss and from unauthorized access, use, alteration or disclosure. However, Flox cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your User Content or associated data for improper purposes. You acknowledge that all User Content and associated data is provided to Flox at Customer’s own risk.

Term and Termination

These Terms of Service are effective when you download, use or access the App, Service or Site. You may terminate your account at any time and for any reason.

With respect to the Flox App and any unpaid promotional access to Flox, Flox may terminate these Terms of Service, your account, your access to the Service, the Service itself or any portion of the Service at any time and for any reason. Flox may also notify authorities or take any actions it deems appropriate (including without limitation suspending your account and your access to the Service), without notice to you if Flox suspects or determines that you may have failed to comply with any provision of these Terms of Service or any other Flox policy or rule, or engaged in actions relating to or in the course of using the Service that may be illegal or cause liability, harm or other disruption for you, Flox, any third party or the Service itself.

As the result of any termination, you will lose your account and all associated User Content, information and data. You will not be entitled to and Flox will not be liable to you or any third party for any refund, reimbursement or other liability as a result of any termination (by you or by Flox) permitted under these Terms of Service for any reason. Flox reserves the right in its discretion to refuse to maintain an account for, or provide the Service to, any individual.

These Terms of Service will remain effective until terminated. Further sections shall survive any termination or expiration of this Agreement.

Effect of Termination

If the Agreement is terminated pursuant to this Section 9, then, unless otherwise specifically provided for in writing by the parties, the following will apply: (a) any license rights granted to Customer with respect to the Services will terminate as of the effective date of the termination; (b) Flox will have no obligation to provide the Services to Customer or your Authorized Users after the effective date of the termination; (d) Customer will pay Flox any amounts payable for Customer’s and your Authorized Users’ use of the Services through the effective date of the termination; No refunds of prepaid fees shall be made to Customer in connection with any termination.

Termination by Flox

Flox may terminate this agreement (i) if Customer defaults in the timely payment of any amounts due Flox and fails to cure within thirty (30) days of receipt of written notice; (ii) immediately if Customer breaches any provisions of Section 2 or Section 4; (iii) in the event of a material breach by Customer of any other provision of the Agreement and Customer fails to cure such breach within thirty (30) days of written notice; (iv) upon thirty (30) days notice for any or no reason; or (v) upon Customer’s bankruptcy, reorganization or assignment for the benefit of creditors.

Limitation On Liability; Indemnity

You acknowledge that the service is provided to you “as is” without warranty of any kind. Except as expressly provided herein and to the maximum extent permitted under applicable laws, Flox, its licensors and Flox affiliates disclaim all warranties relating to the product and the Flox site, express or implied, including, but not limited to, any warranties against infringement of third-party rights, merchantability and fitness for a particular purpose.

To the maximum extent permitted by applicable law, neither Flox, nor Flox affiliates or licensors shall be responsible or liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other theory (a) for loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, or (b) for any indirect, incidental, consequential, or punitive damages or for any amount in excess of $500.00.

Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this agreement are material, bargained for bases of this agreement and that they have been taken into account and reflected in determining the consideration exchanged hereunder and in the decision by each party to enter into this agreement. You understand and agree that neither Flox nor Flox affiliates or licensors are responsible for any loss of life, personal injury, or economic damage resulting from the usage of the product.

You agree that you will not use the product while operating a motor vehicle, for time-critical or emergency services or event or for any operation where injury, death, or economic damage could occur.

You agree to hold harmless and indemnify Flox, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, from and against any third party claim arising from or in any way related to your use of Flox Services, violation of these Terms of Service or any other actions connected with use of Flox Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, Flox will provide you with written notice of such claim, suit or action.

Third Party Code

You acknowledge that the Service uses and/or interfaces with other third party material, including open source libraries/components/applications/user interface/utilities (collectively referred to as “Third Party Code”). This web page: flox.io/dependencies/ provides the notices, disclaimers and licensing requirements for Third Party Code, together with certain Flox proprietary notices.

Third Party Services

The Service may contain links to third party websites or resources. Flox may remove any such links at any time for any reason or for no reason. You acknowledge and agree that Flox is not responsible or liable for the availability or accuracy of such websites or resources, or the content, products, or services on or available from such websites or resources. Such links do not imply any endorsement by Flox of, or relationship of Flox with, such websites or resources or the content, products, or services available from such websites or resources. You shall have sole responsibility for and you assume all risk arising from your use of any such websites or resources.

iTunes App Store Downloads

The following terms apply if you download the App from Apple’s iTunes App Store: You acknowledge and agree that: This Agreement is concluded between you and Flox, and not with Apple, and Flox, not Apple, is solely responsible for the Product and content thereof. Your use of the Service must also comply with the Terms of Service of Apple. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Service to you (if applicable), and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Flox. Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Service or your possession and use of the App or Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Service or your possession and use of the App or Service infringes that third party’s intellectual property rights, Flox will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent (if any) required by this Agreement. Apple and its subsidiaries are third party beneficiaries of this Agreement as related to your license of the Service, and upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Product against you as a third party beneficiary thereof. You must also comply with all applicable third party terms of service when using the Service. Nothing in this section will be construed as diminishing the effect of any disclaimer or limitation of Flox’s liability under this Agreement.

Waiver

The failure to enforce any term of these TOS on one occasion shall not prevent enforcement on any other occasion or the enforcement of any other term.

Assignment

Although fully assignable and transferable by Flox, neither the rights nor the obligations arising under these TOS are assignable or transferable by you, and any such attempted assignment or transfer shall be void and without effect unless agreed to in writing by Flox.

Governing Law

These TOS and any action related thereto shall be governed by and construed in accordance with the laws of the State of Wisconsin without regard to the conflicts of laws provisions therein. These TOS shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction or by the United Nations Convention on Contracts for the international Sale of Goods.

Dispute Resolution

You and Flox agree that any dispute, claim or controversy arising out of or relating to this these TOS or the breach, termination, enforcement, interpretation or validity thereof or the use of the Product or Flox Site (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to: (a) bring an individual action in small claims court and (b) bring an action seeking injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (“IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Wisconsin and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Consolidation

You acknowledge and agree that you and Flox are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Flox otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.

Arbitration Rules and Governing Law

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure

  1. For users located in the United States: Unless you and Flox otherwise agree, the arbitration for any user located in the US will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Flox submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
  2. For users located Outside of United States: Any arbitration proceeding will be conducted in the county where Flox maintains its primary office, namely East Troy, WI, USA. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Flox submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Flox will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Flox will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes

If Flox changes this “Dispute Resolution” section after the date your first accepted this Agreement (or accepted any subsequent changes to these TOS), Customer may reject any such change by sending us written notice (including by email to legal@flox.io) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Flox’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Flox in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these TOS (or accepted any subsequent changes to these TOS).

Government End Users

The Apps, Service and related documentation are “Commercial Items”, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in FAR 2.12. Any use, duplication, or disclosure of the Service or its documentation by or on behalf of the U.S. Government is subject to the restrictions set forth in this Agreement

Export

You agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions (“Export Laws”) governing the Service and/or your use thereof. Without limiting the foregoing, you shall not: (a) export or re-export the Service directly or indirectly in violation of Export Laws; nor (b) use the Service for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.

Unenforceability

In the event that any of the provisions of these TOS shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

Support Procedures

Customer will, at its own expense, respond to questions and complaints from Authorized Users or third parties relating to Customer’s or Authorized Users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Flox. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Flox. Customer’s contacts may submit cases over the Web or other means designated by Flox. Customer’s contacts will be asked to provide their company name and contact information, and each case will be assigned a unique case number. Flox will use commercially reasonable efforts to promptly respond to each case within two (24) hours during regular business hours (Pacific Time) and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Flox’s reasonable determination.

User Names and Business Identifiers

When you choose a user name or identifier for your business account, you must own, control or otherwise have the right to use such identifier. Flox reserves the right to remove or take back and such identifier if Flox believes it is appropriate to do so, such as when a trademark owner complains.

Billing and Payment

Customer will be billed and will pay for the Services on a monthly or annual basis. Flox will bill Customer monthly or annually, as applicable, in advance based on the number of Authorized Users ordered by Customer and (ii) monthly in arrears for Authorized Users added during the preceding month. Flox will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees.

Payment

All payments due are in U.S. dollars unless otherwise indicated on the ordering page of the administrative console or invoice. Payment shall be by credit or debit card, unless otherwise agreed in writing by Flox. Flox will charge Customer for all applicable Fees when due and these Fees are considered delinquent thirty days from the due date.

Delinquent Payments

Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Flox in collecting such delinquent amounts, except where such delinquent amounts are due to Flox’s billing inaccuracies.

Suspension for Non-Payment

Customer will have thirty days to pay Flox delinquent Fees. If Customer does not pay Flox delinquent Fees within thirty days, Flox will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Flox all outstanding Fees. If Customer remains suspended for non-payment for more than sixty days, Flox may terminate Customer for breach pursuant to Section 9.3.

Taxes

Customer is responsible for any Taxes, and Customer will pay Flox for the Services without any reduction for Taxes. If Flox is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Flox with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Flox, Customer must provide Flox with an official tax receipt or other appropriate documentation to support such payments.

Publicity/Press

Each Party shall be allowed to refer to the other as a customer of or service provider to (as the case may be) on its website and in marketing materials, including but not limited to case studies, blog posts and webinars, provided that such reference shall not imply an affiliation, sponsorship, or endorsement of the other. Other than as provided in the foregoing sentence, neither Party shall issue any public announcement regarding the subject matter herein without the prior written approval of the other.

Confidentiality

Definition of Confidential Information

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer’s Data; Flox’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer’s Data) shall 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 without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party as evidenced by contemporaneous written records.

Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

Compelled Disclosure

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

Customer’s Data

Subject only to the limited license expressly granted hereunder, as between Customer and Flox, Flox acquires no right, title or interest from Customer or your Authorized Users under this Agreement in or to Customer’s Data, including any intellectual property rights therein. Customer is solely responsible for Customer’s Data that Authorized Users upload, publish, display, link to or otherwise make available on the Service, and Customer agrees that Flox is only acting as a passive conduit and Data Processor for the online distribution and publication of Customer’s Data which Customer controls. Flox will not review, share, distribute, or reference any of Customer’s Data except as provided herein to provide the Services or as may be required by law. Customer is responsible for notifying its authorized users of its data protection and privacy practices with respect to the Flox Services.

Administrators may have the ability to access, monitor, use, or disclose data available to Authorized Users within the Authorized User Accounts. Customer will obtain and maintain all required consents from Authorized Users to allow: (i) Customer’s access, monitoring, use and disclosure of this data and Flox providing Customer with the ability to do so and (ii) Flox to provide the Services. Flox will have access to Users profile information and User Content. Additionally, Flox may itself gather and aggregate device data and user activity data. Information about Flox’s collection and use practices can be found at flox.io/privacy

Entire Agreement

These TOS, Privacy Policy and any additional policies or rules published by Flox constitute the entire agreement between the parties pertaining to the subject matter hereof, superseding any prior agreements between you and Flox regarding the App, Service and Flox Site and any and all written or oral agreements previously existing between the parties are expressly cancelled.

For any questions or comments or complaints or claims with respect to these TOS, the Site, App or Service please contact:

Flox LLC, 2894 Main St., East Troy, WI 53120, support@flox.io

Copyright © 2014 Flox LLC. All rights reserved.