ACCEPTANCE OF TERMS AND CONDITIONS
These Terms and Conditions govern your (“Customer” or “you”) use of FlexChecks, Inc.’s Custom Application (the “Hosted Services”), as accessed either directly through www.FlexChecks.com , or through a FlexChecks, Inc. affiliate’s web page offering a Service Plan (collectively, the “Site”). You accept these Terms and Conditions (including your corresponding Service Plan, the FlexChecks, Inc.. Terms of Use, and all policies and guidelines referenced and hereby incorporated into these Terms and Conditions) and any modifications that may be made to the Terms and Conditions from time to time. If you do not agree to these Terms and Conditions, you should not use the EAG Custom Application or visit or browse the Site. These Terms and Conditions constitute a binding legal agreement between you and FlexChecks, Inc. (“FlexChecks, Inc.,” “we,” “us,” and “our”).
MODIFICATION OF TERMS AND CONDITIONS
We reserve the right to modify these Terms and Conditions at any time and in any manner at our sole discretion by sending information regarding the amendment to the email address you provide to us. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE HOSTED SERVICES FOR MORE THAN 20 DAYS AFTER SUCH AMENDMENTS HAVE SENT TO YOU. You agree that we shall not be liable to you or to any third party for any modification of the Terms and Conditions.
DEFINITIONS
“Account” means a unique account established by the Customer in order to gain access for its Authorized Users to the Hosted Services.
“Authorized User” means an individual employee or third party agent, as identified by a unique email address and user name, who is registered as a member of Customer’s Account. No two persons may register, access or use the Hosted Services as the same Authorized User.
“Customer Data” means Personal Data and all other data and information concerning Customer or Customer’s personnel or business clients: (a) provided by or on behalf of Customer to FlexChecks, Inc.; or (b) obtained by FlexChecks, Inc. based on the use or Processing of data or information provided by or on behalf of Customer to FlexChecks, Inc..
“Depositing Party” refers to an Authorized User that deposits a document into the System for Processing under the Hosted Services.
“Personal Data” means: (a) non-public personally identifiable information, including driver’s license numbers, national identification numbers such as social security account numbers, credit card numbers, digital identity certificates; (b) personally identifiable financial information regarding a consumer (i) provided by a consumer to a financial institution, (ii) resulting from any transaction with the consumer or any service performed for the consumer by a financial institution, (iii) otherwise obtained by the financial institution, including any list, description, or other grouping of consumers (and publicly available information pertaining to them) that is derived using any nonpublic personal information; and (c) personally identifiable medical or health related information.
“Process” and similar terms mean to perform any operation or set of operations upon Customer Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, accessing, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“License” means an active Authorized User listed in the Users of the application at any one time. No two individuals may log onto or use the Hosted Services as the same Authorized User, but Customer may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Licenses purchased.
“Service Plan” means the right to access and use the Hosted Services for a specified period in exchange for a periodic fee, subject to the Service Plan restrictions and requirements that are used to describe the selected Service Plan on the Site. Restrictions and requirements may include any or all of the following: (a) number of Licenses and/or Envelopes that a Customer may use in a month or year for a fee; (b) fee for sent Envelopes in excess of the number of Envelopes allocated to Customer under the Service Plan; (c) per-license or per-user restrictions; (d) the license to use FlexChecks, Inc. software products such as FlexChecks, Inc. Connect Express in connection with the Hosted Services; and (e) per use fees.
“System” refers to the software systems and programs, communication and network facilities, and hardware and equipment used by FlexChecks, Inc. or its agents to provide the Hosted Services.
“Term” means the period of effectiveness of these Terms and Conditions, as specified in Section 11 below.
“Transaction Data” means data associated with an eContract, including transaction history, eContract image hash value, information concerning method and time of eContract purge, and sender and recipient names, email addresses and signature IDs.
HOSTED SERVICES
FlexChecks, Inc. will provide the Hosted Services in material conformance with the Specifications. Customer may obtain an Account and register Authorized Users, and subject to these Terms and Conditions, use the Hosted Services to Process, as applicable, eContracts. You must be 18 years of age or older to register for an Account and use the Hosted Services. Customer’s right to use the Hosted Services is limited to its Authorized Users, and Customer agrees not to resell the use of the Hosted Services.
PRICING AND PER USE PURCHASES
The prices, features, and options of the Hosted Services available for an Account depend on the Service Plan selected by Customer. Customer may also purchase optional services on a periodic or per-use basis. Customer’s usage under a Service Plan is measured based on the actual number of Licenses as described in the Service Plan. Once a per-License Service Plan is established, the right of the named Authorized User to access and use the Hosted Services is not transferable; any additional or different named Authorized Users must purchase per-License Service Plans. Extra licenses, users and/or per use fees will be charged as set forth in Customer’s Service Plan if allowed by such Service Plan.
CUSTOMER SUPPORT
FlexChecks, Inc. will provide customer support to customer as specified in the Service Plan selected by Customer. Additional support options are available and may be subject to periodic charges.
STORAGE
FlexChecks, Inc. will store data per the terms of the Service Plan selected by Customer.
FEES AND PAYMENT TERMS
The Service Plan rates, charges, and other conditions for use are set forth in the Service Plan. Customer will pay FlexChecks, Inc. the applicable charges for the Service Plan as set forth in the Service Plan. If you add more Authorized Users than the number of Licenses you purchased, we will add those Authorized Users to your Account and impose additional charges for such additional Licenses on an ongoing basis. Charges for pre-paid Service Plans will be billed to Customer in advance. You must promptly notify us of any change in your invoicing address or changes related to the information used for payment. We will provide you with one invoice in a format we choose, which may change from time to time, for all Hosted Services associated with each Account and any charges of a third party on whose behalf we bill. Payment of all charges is due and will be debited upon your receipt of an invoice. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. You are solely responsible for any and all fees charged to you by your bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 20 days after they first appear on your invoice. If you do not bring them to our attention within 20 days, you agree that you waive your right to dispute such problems or discrepancies. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by FlexChecks, Inc. to collect any amount that is not paid when due. FlexChecks, Inc. may accept any check or payment in any amount without prejudice to FlexChecks, Inc.’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to FlexChecks, Inc. under these Terms and Conditions may not be withheld or offset by Customer for any reason against amounts due or asserted to be due to Customer from FlexChecks, Inc.. All amounts payable under these Terms and Conditions are denominated in United States dollars, and Customer will pay all such amounts in United States dollars. Other than federal and state net income taxes imposed on FlexChecks, Inc. by the United States, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms and Conditions or transactions conducted in relation to these Terms and Conditions. Customer will pay any additional taxes as are necessary to ensure that the net amounts received and retained by FlexChecks, Inc. after all such taxes are paid are equal to the amounts that FlexChecks, Inc. would have been entitled to in accordance with these Terms and Conditions as if the taxes did not exist.
TERM AND TERMINATION
The term of these Terms and Conditions for each Account begins on the date indicated in your Service Plan and ends when that Account is terminated (the “Term”).
CUSTOMER WARRANTIES
You hereby represent and warrant to FlexChecks, Inc. that: (a) you have all requisite rights and authority to use the Hosted Services under these Terms and Conditions and to grant all applicable rights herein; (b) the performance of your obligations under these Terms and Conditions will not violate, conflict with, or result in a default under any other agreement, including confidentiality agreements between you and third parties; (c) you will use the Hosted Services for lawful purposes only and subject to these Terms and Conditions; (d) you are responsible for all use of the Hosted Services in your Account; (e) you are solely responsible for maintaining the confidentiality of your Account names and password(s); (f) you agree to immediately notify us of any unauthorized use of your Account of which you become aware; (g) you agree that FlexChecks, Inc. will not be liable for any losses incurred as a result of a third party’s use of your Account, regardless of whether such use is with or without your
knowldge and consent; (h) you will not use the Hosted Services in any manner that could damage, disable, overburden or impair the System, or interfere with another’s use of the Hosted Services; (i) any information submitted to FlexChecks, Inc. by you is true, accurate, and correct; and (j) you will not attempt to gain unauthorized access to the System or the Hosted Services, other accounts, computer systems, or networks under the control or responsibility of FlexChecks, Inc. through hacking, cracking, password mining, or any other unauthorized means.
FLEXCHECKS, INC. WARRANTIES
FlexChecks, Inc. represents and warrants that: (a) the Hosted Services as delivered to Customer and used in accordance with the Specifications will not infringe on any United States patent, copyright or trade secret; (b) the Hosted Services shall be performed in accordance with the Specifications in their then-current form at the time of the provision of such Hosted Services; and (c) any FlexChecks, Inc. Products that are software shall be free of harmful or illicit code, trapdoors, viruses, or other harmful features.
CUSTOMER INDEMNIFICATION OBLIGATIONS
You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to: (a) your use of the Hosted Services; (b) your violation of these Terms and Conditions; (c) your infringement, or infringement by any other user of your Account, of any intellectual property or other right of any person or entity; or (d) the nature and content of all materials, works, data, statements, and other visual, graphical, written, or audible communications of any nature submitted by any Authorized User of your Account or otherwise Processed through your Account.
LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, FLEXCHECKS, INC. WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL FLEXCHECKS, INC.’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR CUSTOMER’S USE OF THE HOSTED SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO FLEXCHECKS, INC. UNDER THESE TERMS AND CONDITIONS DURING THE 3 MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM. EACH PROVISION OF THESE TERMS AND CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES REPRESENTS AN AGREED ALLOCATION OF THE RISKS OF THESE TERMS AND CONDITIONS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FLEXCHECKS, INC. TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS AND CONDITIONS, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THESE TERMS AND CONDITIONS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
CONFIDENTIALITY
“Confidential Information” means any trade secrets or other information of FlexChecks, Inc., whether of a technical, business, or other nature (including, without limitation, FlexChecks, Inc. software and related information), that is disclosed to or made available to Customer. Confidential Information does not include any information that: (a) was known to Customer prior to receiving it from FlexChecks, Inc.; (b) is independently developed by Customer without use of or reference to any Confidential Information; (c) is acquired by Customer from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of Customer. During and after the Term of these Terms and Conditions, Customer will: (i) use the Confidential Information solely for the purpose for which it is provided; (ii) not disclose such Confidential Information to a third party; and (iii) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If Customer is required by law to disclose the Confidential Information or the terms of these Terms and Conditions, Customer must give prompt written notice of such requirement before such disclosure and assist the FlexChecks, Inc. in obtaining an order protecting the Confidential Information from public disclosure. Customer acknowledges that, as between the parties, all Confidential Information it receives from FlexChecks, Inc., including all copies thereof in Customer’s possession or control, in any media, is proprietary to and exclusively owned by FlexChecks, Inc.. Nothing in these Terms and Conditions grants Customer any right, title, or interest in or to any of the Confidential Information. Customer’s incorporation of the Confidential Information into any of its own materials shall not render Confidential Information non-confidential. Customer acknowledges that any actual or threatened violation of this confidentiality provision may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain, and therefore agrees that FlexChecks, Inc. shall be entitled to seek injunctive relief in addition to all remedies available to FlexChecks, Inc. at law and/or in equity. Absent written consent of FlexChecks, Inc., the burden of proving that the Confidential Information is not, or is no longer, confidential or a trade secret shall be on Customer.
INTELLECTUAL PROPERTY
FlexChecks, Inc. is the owner of various intellectual property and technology rights associated with the Hosted Services, its document management, digital signature, and notary system, including patent, copyright, trade secret, and trademark and service mark rights. Except for the rights expressly granted in these Terms and Conditions, FlexChecks, Inc. does not transfer to Customer of any Authorized User any of FlexChecks, Inc.’s technology or other intellectual property or technology rights. All right, title, and interest in and to FlexChecks, Inc.’s technology and intellectual property will remain solely with the FlexChecks, Inc.. Customer agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Hosted Services or FlexChecks, Inc.’s technology. FlexChecks, Inc. agrees that data and information provided by Customer under these Terms and Conditions shall remain, as between Customer and FlexChecks, Inc., owned by Customer. The software and services provided through this website are protected by one or more of the following U.S. Patents and Patent Applications: Pat. No. 5,615,268; Pat. No. 5,748,738; Pat. No. 6,237,096; Pat. No. 6,367,013; Pat. No. 7,020,645; Pat. No. 7,162,635; Pat. Appl. No. 10/620,817; and Pat. Appl. No. 11/325,463; Pat. No. 6,289,460 and Pat. No. 6,944,648. Other patents pending. All rights reserved.
GENERAL
The Hosted Services will be accessed and delivered via the internet. Customer is responsible for obtaining the necessary equipment and internet connection in order to access and use the Hosted Services. In order to fully utilize the Hosted Services, Customer will need to maintain certain minimum hardware and software requirements. FlexChecks, Inc. will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of these Terms and Conditions. These Terms and Conditions will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; (c) prohibiting or restricting either party’s performance of any services for any third party; or (d) establishing or as a foundation for any rights or remedies for any third party, whether as a third party beneficiary or otherwise. Customer must not represent to anyone that Customer is an agent of FlexChecks, Inc. or is otherwise authorized to bind or commit FlexChecks, Inc. in any way without FlexChecks, Inc.’s prior authorization.
Customer may not assign its rights, duties, or obligations under these Terms and Conditions without FlexChecks, Inc.’s prior written consent. If consent is given, these Terms and Conditions will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under these Terms and Conditions except as expressly provided in these Terms and Conditions is void.
FlexChecks, Inc. may freely assign its rights, duties, and obligations under these Terms and Conditions. FlexChecks, Inc. may utilize a subcontractor or other third party to perform its duties under these Terms and Conditions so long as: (a) FlexChecks, Inc. shall not be relieved of any responsibilities or obligations under these Terms and Conditions that are performed by the subcontractor or third party; and (b) FlexChecks, Inc. shall remain Customer’s sole point of contact and sole contracting party.
We may provide, or third parties may provide, links to other Web sites or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us with respect to such sites. FLEXCHECKS, INC. IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE CONTAINED OUTSIDE THE SITE. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Site.
Any notice required or permitted to be given in accordance with these Terms and Conditions will be effective if it is in writing and sent using the certified delivery function of the Hosted Services, by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in Customer’s registration information for Customer or on the Site for FlexChecks, Inc.. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given upon receipt if delivered using the Hosted Services or email, two business days following the date of mailing, or one business day following delivery to a courier.
Neither party will be liable for, or be considered to be in breach of or default under these Terms and Conditions on account of, any delay or failure to perform as required by these Terms and Conditions as a result of any cause or condition beyond such party’s reasonable control, so long as such party uses all commercially reasonable efforts to avoid or remove such causes of non-performance or delay.
These Terms and Conditions are governed in all respects by the laws of the State of Washington as such laws are applied to agreements entered into and to be performed entirely within Washington between Washington residents. Any controversy or claim arising out of or relating to these Terms and Conditions, the Hosted Service, or the Site will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in King County, Washington, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by Washington law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. By using the Site or the Hosted Services, you consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in King County, Washington. Any legal action by Customer arising under these Terms and Conditions must be initiated within two years after the cause of action arises.
The waiver by either party of any breach of any provision of these Terms and Conditions does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms and Conditions will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms and Conditions.
If any part of these Terms and Conditions is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms and Conditions will remain in full force and effect. If any material limitation or restriction on the grant of any license to Customer under these Terms and Conditions is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
Except as set forth in Section 2 of these Terms and Conditions, these Terms and Conditions may not be amended except in writing signed by both you and us. In the event that we make such a change that has a material adverse impact on your rights or use of the Service, you may terminate these Terms and Conditions by giving us notice within 20 days of the date we notify you, and you will not be charged any cancellation fee. These Terms and Conditions are the final and complete expression of the agreement between these parties regarding the Hosted Services. These Terms and Conditions supersede, and the terms of these Terms and Conditions govern, all previous oral and written communications regarding these matters.