THESE TERMS OF SERVICE (THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU (“CUSTOMER”) AND FELUX, INC. (“FELUX”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH FELUX AGREES TO GRANT CUSTOMER THE RIGHT TO ACCESS AND USE FELUX’S ELEVATE SOFTWARE AS A SERVICE OFFERING.
BY ACCEPTING THIS AGREEMENT, EITHER BY CHECKING A BOX INDICATING YOUR ACCEPTANCE OR PLACING AN ORDER (AS DEFINED IN SECTION 1 BELOW) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU HAVE NEGOTIATED A SIGNED MASTER SERVICES AGREEMENT WITH FELUX THAT GOVERNS SERVICES PURCHASED, THAT SIGNED MSA, AND NOT THESE TERMS WILL APPLY TO YOUR PURCHASE.
Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and Customer’s Order. For the purpose of this Agreement, an “Order” means an order for Felux’s Elevate software as a service offering placed by Customer and accepted by Felux. The Order may be a physical purchase order or may be a form or other user interface that you interact with on the Felux website that you use to order Services. Felux offers both evaluation and paid subscriptions for the Service. If your Order indicates that your selected subscription will be provided at no charge (a “Trial Subscription”), the payment obligations set forth in Section 3.1 will not apply until such time as Customer upgrades to a paid subscription or places an order for paid Services.
2. THE SERVICE.
Commencing on the effective date each applicable Order, Felux shall make available to Customer the specific subscription to Felux’s Elevate service, as identified in that Order, for use by Customer within the use limitations set forth in the Order (the “Service”) under the terms of this Agreement. These terms apply to your use of the Felux Elevate service. If you access other products and services provided by Felux (including for instance our logistics or financing services), you agree to the applicable terms associated with those products and services, which are available for review at https://felux.com/terms, and hereby incorporated by reference into this Agreement.
2.2 Rights to the Service.
Subject to the terms and conditions of this Agreement, Felux hereby grants Customer a nonexclusive, non-transferable, worldwide right during the Term to access the Service for Customer’s own business purposes, in each case subject to any use limitations specified in the applicable Order.
In order to use many aspects of the Service, Customer must first complete a registration process via the Felux Elevate webpage. Customer agrees: (a) to provide accurate, current and complete information about their company and Customer's position within that company, including but not limited to a valid email address, and their full legal name, as part of the registration process ("Registration Data"); (b) to maintain the security of Customer's password(s); (c) to maintain and promptly update the Registration Data, and any other information provided to Felux, and to keep it accurate, current and complete; (d) that Customer is responsible for maintaining the security of Customer’s account and safeguarding password(s), and (e) that Customer will be fully responsible for any activities or transactions that take place using their account(s) or password(s), even if they were not aware of them. Customer must notify Felux immediately of any breach of security or unauthorized use of Customer's account. Although Felux will not be liable for Customer’s losses caused by any unauthorized use of Customer’s account, Customer may be liable for the losses of Felux or others due to such unauthorized use.
At no charge to Customer, Felux shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement. Felux reserves the right -- at any time, and without notice or liability to you -- to modify the Service, or any part of them, temporarily or permanently. Felux may modify the Service for a variety of reasons, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.
2.5 Restrictions and Conditions.
Customer shall not, directly, indirectly or through its authorized users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Felux technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with Felux products and services; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law.
2.6 Reservation of Rights.
All rights not expressly granted to Customer are reserved by Felux, its suppliers and licensors.
2.7 Return of Hosted Data.
If requested by Customer within thirty (30) days of the expiration or termination of this Agreement, Felux shall make available to Customer all Customer data stored within the Service at the time of expiration or termination. Thirty (30) days after termination, Felux shall have no further obligation to Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.
2.8 Third Party Interactions.
The Services may enable Customer to interact with third parties, and may contain links to third-party websites or resources. Felux provides these links only as a convenience and is not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. Customer acknowledges sole responsibility for, and assume all risk arising from, Customer’s use of any third-party websites or resources. Felux is not a party to any relationships or agreements between Customer and any third parties for the performance of any duties between the Customer and such third parties, and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed or promised by Customer or such third parties.
3. CUSTOMER OBLIGATIONS.
3.1 Fees and Payment Terms.
In consideration of the rights granted herein, Customer shall pay Felux the amounts specified in each applicable Order (“Fees”).
(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Felux is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Felux for all amounts paid.
(b) All amounts shall be paid to Felux within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Felux in writing of any disputed amounts.
(c) Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Felux further reserves (among other rights and remedies) the right to suspend access to the Service. Amounts payable to Felux shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Felux.
(d) All prices and other payment terms are confidential information of Felux and Customer agrees not to disclose such information to any third party throughout the Term and for three (3) years thereafter.
(e) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.
3.2 Compliance with Laws.
The Felux software and Service are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all enduser, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Each party represents that it is not named on any U.S. government or EU denied-party list. Customer shall not enable use of the Services in a U.S. or EU-embargoed country (currently Cuba, Iran, North Korea, Sudan, Crimea -- Region of Ukraine, Libya or Syria) or in violation of any U.S. and EU export law or regulation. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights. Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, Customer will not upload any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 or sensitive financial information regulated under the GrammLeach-Bliley Act of 1999.
By submitting or uploading content, data or materials ("User Content") to the Service, Customer grants Felux a worldwide, royalty-free, and non-exclusive license (i) to use, reproduce, modify, adapt and publish that User Content for the purpose of providing the Service to Customer; and (ii) to create aggregations and summaries of the User Content or portions thereof and to use, disclose, and distribute such aggregations publicly to any third party in support of our business (both during the period that these terms are in effect, and thereafter), provided that such aggregations and summaries do not directly or indirectly identify the Customer or their User Content.
4. TERM AND TERMINATION.
This Agreement will begin on your first use of the Service and continue until terminated by either party. Orders placed prior to termination will survive for the remainder of the Service term agreed upon in the applicable Order. Unless otherwise specified in the Order, the initial term of each Order will begin on the effective date of that Order and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the then-current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”). If no End Date is specified in the Order, the End Date will be one year from the Effective Date of the Order
Either party may terminate this Agreement or an applicable Order if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.
4.3 Effect of Termination.
Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Felux.
Customer shall indemnify and hold Felux, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2 or 3 of this Agreement. In the event Felux is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.
Except with respect to Trial Subscriptions, Felux shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out a thirdparty claim that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement. Felux shall have no indemnification obligation, and Customer shall indemnify Felux pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any Felux software not expressly authorized herein.
A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
6. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
6.1 Mutual Warranties.
Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FELUX, ITS SUPPLIERS AND ITS LICENSORS.
CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. FELUX IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND FELUX’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY FELUX.
CUSTOMER’S EXCLUSIVE REMEDY AND FELUX’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO THE AGGREGATE AMOUNTS PAID BY CUSTOMER AND RECEIVED BY FELUX HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. CUSTOMER HEREBY RELEASES FELUX, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT FELUX’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
6.5 Exclusion of Certain Damages and Limitations of Types of Liability.
IN NO EVENT WILL FELUX BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
6.6 Your Time Limitation to Bring Action.
REGARDLESS OF ANY OTHER STATUTE OF LIMITATIONS PROVIDED UNDER APPLICABLE LAW, NO CLAIM, LITIGATION OR ACTION OF ANY KIND, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT SERVICES MAY BE BROUGHT BY YOU AGAINST FELUX MORE THAN THIRTY (30) DAYS AFTER THE OCCURRENCE OF THE CIRCUMSTANCES UNDERLYING SUCH CLAIM, LITIGATION OR ACTION.
The limitations in sections 6.3 and 6.4 are independent of each other. The limitation of damages set forth in section 7.1 shall survive any failure of essential purpose of the limited remedy in section 6.4.
7. PROPRIETARY RIGHTS.
7.1 Governing Law.
All matters relating to or arising out of this Agreement and any dispute or claim arising out of or relating to it (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction).
You, the Company, and the Company Representatives agree that any claim, dispute, issue, or controversy that arises out of or relates to this Agreement, your relationship with the Company, or the termination of your relationship with the Company, (each, a “Claim”) shall be resolved in accordance with this Section 8 (sometimes referred to as the “Arbitration Provision”).
BEFORE SERVING A DEMAND FOR ARBITRATION OF A CLAIM, YOU AND THE COMPANY AGREE TO FIRST NOTIFY EACH OTHER OF THE CLAIM. YOU AGREE TO NOTIFY THE COMPANY OF THE CLAIM AT ATTN: LEGAL, 6001 EUCLID AVE. SUITE #150 CLEVELAND, OH 44103 OR BY EMAIL TO SUPPORT@FELUX.COM, AND THE COMPANY AGREES TO PROVIDE TO YOU A NOTICE AT YOUR EMAIL ADDRESS ON FILE (IN EACH CASE, A “NOTICE”). YOU AND THE COMPANY SHALL FIRST SEEK INFORMAL VOLUNTARY RESOLUTION OF THE CLAIM. ANY NOTICE MUST INCLUDE PERTINENT ACCOUNT INFORMATION, A BRIEF DESCRIPTION OF THE CLAIM, AND CONTACT INFORMATION, SO THAT YOU OR THE COMPANY, AS APPLICABLE, MAY EVALUATE THE CLAIM AND ATTEMPT TO INFORMALLY RESOLVE THE CLAIM. BOTH YOU AND THE COMPANY WILL HAVE 60 DAYS FROM THE DATE OF THE RECEIPT OF THE NOTICE TO INFORMALLY RESOLVE THE OTHER PARTY’S CLAIM, WHICH, IF SUCCESSFUL, WILL avoid the need for further action. In the unlikely event the parties are unable to resolve a Claim, you, the Company, and the Company Representatives, agree that any Claim shall be resolved in Cleveland, Ohio by final and binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.
8.1 Scope of Arbitrations Agreement and Conduct of Arbitration
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with the Company ends. This Arbitration Provision is intended to apply to the resolution of Claims that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Arbitration will be conducted in Cleveland, Ohio in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a user that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the user is located. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures”. Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
8.2 Interpretation and Enforcement of this Arbitration Provision.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and the Company agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
8.3 Class and Collective Waiver.
This Arbitration Provision affects your ability to participate in class or collective actions. Both you and the Company agree that any Claim shall be subject solely to arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There shall be no right or authority for any Claim to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the Claim is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. However, the Company may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
9. GENERAL CONDITIONS.
9.1 Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter and supersedes all other agreements and understandings, both written and oral, between the parties with respect to the subject matter.
9.2 Waiver and Severability.
No waiver of by the Company of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by an arbitrator, a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Agreement will continue in full force and effect.
This Agreement is not transferable and may not be assigned by you, in whole or in part, without the prior written consent of Felux. Subject to the foregoing, this Agreement shall be binding upon all successors and assigns of a party
9.4 Attorney’s Fees.
In any litigation between the parties, the non-prevailing party shall pay the prevailing party the prevailing party’s reasonable attorney fees and all other costs of proceedings incurred in enforcing this Agreement.
Notice shall be in writing and provided as follows:
6001 Euclid Ave #150 Cleveland, OH 44103
9.6 Independent Enterprises.
Felux and you are and shall remain independent business enterprises. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other. You represent that the individual accepting this Agreement is authorized by you to bind, and does bind, you to these terms. This Agreement does not create a joint venture, joint enterprise or partnership between the parties.
You agree to hold in confidence any confidential and proprietary information of Felux that you become aware of in connection with this Agreement.
10. NOTICES, CHANGES TO TERMS.
Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. Felux reserves the right to change or modify this Agreement, or any of its other policies or guidelines, at any time. Felux will provide notice by posting the updated Agreement terms on Felux’s website and revising the date at the bottom of these terms. Any changes or modifications will be effective from the day the updated terms have been published at www.felux.com/_. Customer acknowledges that its continued use of the Service following such notice constitutes its acceptance of the modified terms of this Agreement.