Partnership Agreement "TERMS OF SERVICE"

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FLIP-INC PARTNERSHIP AGREEMENT (TERMS OF SERVICE)

 

This FLIP-INC Partnership Agreement (these “terms” or this “agreement”) is madebetween you (either an individual or, if you are using FLIP-INC PartnershipAgreement on behalf of an entity, that entity) and FLIP-INC. It governs youraccess to and use of FLIP-INC's services, products, software, and websites (the“Services”).

 

If yourOrder Form contains additional terms and conditions, then those terms andconditions govern to the extent they conflict with any of these terms. If youare agreeing to these terms on behalf of an entity, you represent that you havethe authority to bind that organization, otherwise you must not sign up for theServices.

 

Please readthis agreement carefully. It requires the use of binding individual arbitrationto resolve disputes rather than jury trials or class actions (for informationabout how to opt-out, see Section 11.8 (30-day opt-out period) below).

 

1. Services

1.1. Weprovide bookkeeping services

FLIP-INCservices are a solution for bookkeeping and financial organization. FLIP-INC'sbookkeeping services and any related communications with us are not asubstitute for and do not include legal, tax, financial, real estate,healthcare, or accounting advice. FLIP-INC is not a public accounting firm. Formore about what the Services do and do not include, and how you can use them,please see our Acceptable Use Policy.

 

1.2. Xero

We use Xeroto provide the Services. If you don’t already have an account, we will createone for you. Your and our use of Xero will be governed by their terms ofService and Privacy Policy.

 

1.3.Third-party services and Login Credentials

Our Servicescan automatically transfer data from other websites and services, like yourbank account. If you provide us with login credentials (for example, an accountname or number, password, answers to security questions (collectively, the“Login Credentials”)), you both (a) give us permission, and a limited power ofattorney, to use them to login to these other websites and services and access,transfer, reformat, and manipulate your account on your behalf; and (b)represent to us that you have the authority to give us this permission. We willmaintain Login Credentials in encrypted form, and we will only use them asdescribed in this agreement.

 

1.4.Unauthorized uses of the Services

You willonly use the Services in accordance with FLIP-INC Acceptable Use Policy. We maysuspend or terminate provision of the Services, in whole or in part, where webelieve it is being used in a manner that breaches this agreement (includingthe Acceptable Use Policy) or creates risk of personal injury, property damage,or legal liability for FLIP-INC, you or any third party, or may cause FLIP-INCto lose the services of one of our third-party service providers. You representand warrant that any information you provide to us about your (or, if you areacting on behalf of another, that person’s) business, products, or services isaccurate and complete.

 

1.5.Modifications to the Services

We areconstantly changing and improving our Services. We may add or removefunctionality or features, and we may suspend or stop part of the Servicesaltogether.

 

1.6.Facilities and data transfer

Allfacilities used to store and process Customer Data will adhere to reasonablesecurity standards no less protective than the security standards at facilitieswhere FLIP-INC stores and processes its own information of a similar type. Aspart of providing the Services, we may transfer, store and process CustomerData in the United States. By using the Services, you consent to this transfer,processing and storage of Customer Data.

 

2. Tax Services

If yourOrder Form shows that you’ve purchased FLIP-INC tax preparation service, youruse of that service is governed by the FLIP-INC tax terms.

 

3.Non-Disclosure and Confidentiality

3.1.Obligations

Subject toSection 3.2 (Disclosure of Confidential Information) the recipient (that is,FLIP-INC and you) will use the other party’s Confidential Information only toexercise rights and fulfill obligations under this agreement. Customer Data isyour Confidential Information. The recipient will use reasonable care toprotect against disclosure of the other party’s Confidential Information toother parties other than the recipient’s Delegates who need to know it and whohave a legal obligation to keep it confidential. The recipient will ensure thatits Delegates are also subject to the same non-disclosure and use obligations.

 

Uponrequest, FLIP-INC will execute a separate agreement reflecting thesenon-disclosure and confidentiality obligations for your records.

 

3.2.Disclosure of Confidential Information

3.2.1.General

Regardlessof any other provision in this agreement, the recipient or its Affiliates maydisclose the other party’s Confidential Information (a) in accordance with aLegal Process, subject to Section 3.2.2 (Legal Process notification); (b) withthe other party’s written consent; or (c) in connection with enforcing ourrights under our agreements with you.

 

3.2.2. LegalProcess notification

Therecipient will use commercially reasonable efforts to notify the other partybefore disclosing that party’s Confidential Information in accordance withLegal Process. Notice is not required before disclosure if the recipient isinformed that (a) it is legally prohibited from giving notice or (b) the LegalProcess relates to exceptional circumstances involving danger of death orserious physical injury.

 

3.2.3.Opposition

Therecipient and its Affiliates will comply with the other party’s reasonablerequests to oppose disclosure of its Confidential Information.

 

4. Payment

FLIP-INCwill collect payment for the fees automatically via EFT. Fees are exclusive oftaxes, which you’re responsible for if applicable. You hereby authorizeFLIP-INC or its payment processor to initiate entries to your businessoperating accounts on file with FLIP-INC (using your business address on file)in order to pay amounts that you owe to FLIP-INC (including for any RenewalTerms as those payments come due), and, if necessary, to initiate adjustmentsfor any transactions credited or debited in error. FLIP-INC may immediatelysuspend provision of the Services if your account is past due. Except to theextent expressly set forth in this Section 4 (Payment), all payments arenon-refundable and non-creditable.

 

5. Term andTermination

5.1. Initialterm

Thisagreement is effective on the date you sign an Order Form or you otherwiseagree to these terms (for example, by clicking through an online agreement)(the “Effective Date”). Your initial subscription term will begin at thesubscription start date and continue, unless terminated earlier, for the termspecified on your Order Form (the “Initial Term”).

 

5.2.Automatic renewal

Upon the endof the Initial Term and any Renewal Term, your subscription will automaticallyrenew for the same duration as the Initial Term unless you give us notice (viasupport@FLIP-INC.COM) at least (a) seven (7) days for monthly or quarterlysubscriptions; or (b) thirty (30) days for annual subscriptions, in each case,prior to the end of the then-current Initial Term or Renewal Term, asapplicable.

 

5.3.Termination by us

We mayterminate your subscription at any time by providing notice of termination toyou via the email address we have on file. In the event we terminate yoursubscription for any reason other than your violation of Section 1.4(Unauthorized uses of the Services) or your material breach of this agreement,we will give you a refund of prepaid fees for unelapsed months of the Services.

 

5.4. Effectof termination or expiration of subscription

In the eventyour subscription ends, we will try to transfer to you the “masteradministrator” status for the XERO Online account that was maintained for youby FLIP-INC, so that you can elect to maintain that subscription with Xero orexport your data.

 

5.5.Survival

Sections 3,5.4, 6, and 8 – 12 (inclusive) will survive the termination or expiration ofthis agreement.

 

6.Intellectual Property

As betweenthe parties, you retain all intellectual property rights in your data, and weretain all intellectual property rights in the Services. You grant us a limitedlicense to use your data to provide, protect, and improve the Services. We mayretain anonymized, de-identified, and aggregated data that is protected byorganizational and technical safeguards in order to perform research anddevelopment. If you provide us with feedback or suggestions about the Services(“Feedback”), then we may use that information without obligation to you, andyou hereby irrevocably assign to us all right, title, and interest in thatFeedback.

 

7. UsingFLIP-INC Services on Behalf of Others

If you areusing the Services on behalf of another individual or entity, you represent andwarrant that you have all the authorizations and rights necessary andsufficient to do so.

 

8. WarrantyDisclaimer

TO THEFULLEST EXTENT PERMITTED BY LAW, FLIP-INC, ITS AFFILIATES, AND ITS AND THEIRSUPPLIERS AND DISTRIBUTORS (THE “FLIP-INC ENTITIES”) MAKE NO WARRANTIES, EITHEREXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED “AS IS.” NOWARRANTY IS MADE THAT THE SERVICES OR RESULTS OF USE OF THE SERVICES WILL MEETYOUR NEEDS OR EXPECTATIONS, THAT THE SERVICES WILL BE TIMELY, SECURE,UNINTERRUPTED OR ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THESERVICES WILL BE ACCURATE OR RELIABLE. WE ALSO DISCLAIM ANY WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF THEEXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANYIMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERYOF THE SERVICE, WHICHEVER IS SOONER. FLIP-INC ENTITIES DISCLAIM ANYREPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY ORENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.

 

9.Limitation of Liability

TO THEMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF THEFLIP-INC ENTITIES FOR ALL CLAIMS RELATING TO THE SERVICES AND THIS AGREEMENTSHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12)MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED US DOLLARS, WHICHEVER IS GREATER.SUBJECT TO APPLICABLE LAW, THE FLIP-INC ENTITIES ARE NOT LIABLE FOR ANY OF THEFOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIALDAMAGES; (B) DAMAGES RELATING TO LOSS OF USE, DATA, BUSINESS, REVENUES, ORPROFITS. THE ABOVE LIMITATIONS APPLY EVEN IF THE FLIP-INC ENTITIES HAVE BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THEENTIRE LIABILITY OF THE FLIP-INC ENTITIES AND YOUR EXCLUSIVE REMEDY WITHRESPECT TO THE SERVICES AND THEIR USE.

 

10.Indemnification

You shalldefend and indemnify the FLIP-INC Entities from and against all damages,losses, liabilities, claims, demands, actions, suits, judgements, settlements,costs and expenses, including all attorneys’ fees, that arise from or relateto: (a) your use of and our provision of the Services (except to the extentarising directly from our willful misconduct or gross negligence), (b) yourviolation of this agreement, (c) any content, information or materials providedby you, or (d) infringement by you, or any third party using your account oridentity in the services, of any intellectual property or other right of anyperson or entity. We reserve the right to assume the exclusive defense andcontrol of any matter otherwise subject to indemnification by you, in whichevent you will assist and cooperate with us in asserting any availabledefenses.

 

11.Disputes; Class-Action Waiver

11.1.Judicial forum for disputes

Except asset forth in Section 11.5 (Arbitration), you and FLIP-INC agree that any andall claims relating to these terms or the Services may only be brought in thefederal court of Canada, subject to the mandatory arbitration provisions below.Both you and FLIP consent to venue and personal jurisdiction in such courts.

 

11.2. Noticeof disputes

If you havea dispute with FLIP-INC, you will promptly send written notice to:FLIP-INC.COM, Inc., 88 Davenport, Toronto

 

11.3.Governing law

Thisagreement and all claims (including procedural issues) between the parties aregoverned by the laws of Ontario.

 

11.4.Informal resolution

Beforefiling a claim, you and we each agree to try to resolve the dispute bycontacting the other party through the notice procedures in Section 11.2(Notice of disputes). If a dispute is not resolved within thirty days ofnotice, you and we may bring a formal proceeding.

 

11.5.Arbitration

You andFLIP-INC agree to resolve any and all claims relating to this agreement or theServices through final and binding arbitration, except as set forth below.Arbitration will be held in Ontario or any other location both parties agree toin writing.

 

11.6.Exception to arbitration

Either partymay bring a lawsuit in the federal or provincial courts of Ontario, solely forinjunctive relief to stop unauthorized use or abuse of the Services orinfringement of Intellectual Property Rights without first engaging in theinformal dispute notice process described above.

 

11.7. NOCLASS ACTIONS

You may onlyresolve disputes related to or arising from the Services with FLIP-INC Entitieson an individual basis and will not bring a claim in a class, consolidated, orrepresentative action.

 

11.8. 30-dayopt-out period

If you don’twish to be bound by these arbitration provisions (including its waiver of classand representative claims), you must notify us by emailing SUPPORT@FLIP-INC.COMno later than 30 days after the first acceptance date of any version of thisagreement containing an arbitration provision (unless a longer period isrequired by applicable law). An opt-out notice does not revoke any previousarbitration agreement between us.

 

11.9. Futurechanges to this dispute resolution agreement

If FLIP-INCmakes any changes to this Section 11 (or successor section and not includingSection 11.2 (Notice of Disputes)), you may reject any such change by notifyingus via the procedure set forth in Section 11.8 (30-day opt-out period) within30 days of the change. It is not necessary to submit a rejection of a futurechange to this Section 11 if you have properly opted out of arbitration incompliance with the requirements of Section 11.8 (30-day opt-out period).

 

12.Miscellaneous

12.1.Updates to this agreement

FLIP-INC maymake nonmaterial changes to these terms at any time without notice, but we willprovide advance notice of any material changes to them. Other than changes madeunder Section 11.9 (Future changes to this dispute resolution agreement), thechanges to the terms will not apply retroactively and will become effective 30days after we give you notice or the stated effective date of the new terms,whichever is later. If a new version of these terms has a material negativeimpact on you, then you may object to the change by notifying us (viasupport@FLIP-INC.COM) within 30 days after we provide you with notice of thechanges. If you so notify us, then you will remain governed by the terms ineffect immediately before the change until the end of your then-current InitialTerm or Renewal Term, as applicable. After that, you will be governed by thechanged terms. Notwithstanding anything to the contrary in the foregoing, anychanges to the terms related to new features or made for legal reasons willbecome effective immediately upon notice.

 

12.2.Severability

If one ormore of the provisions contained in this agreement is held invalid, illegal orunenforceable in any respect by any court of competent jurisdiction, suchholding will not impair the validity, legality, or enforceability of theremaining provisions.

 

12.3.Assignment

You may notassign this agreement, or your rights or obligations under it, in whole or inpart and any such assignment is void. FLIP-INC may freely assign thisagreement, or its rights and obligations under it, in whole or in part.

 

12.4.Electronic notices

We willcommunicate with you via email or the Services’ user interface. It is yourresponsibility to keep your Services account e-mail address up-to-date so thatyou are able to receive electronic communications from us.

 

12.5. Entireagreement; amendments

Thisagreement, together with your Order Form, constitutes the entire agreementbetween you and FLIP-INC with respect to its subject matter, and supersedes anyand all prior agreements, discussions, negotiations, and offers. Except asspecifically stated otherwise in the agreement, any amendment to the agreementmust be in writing, expressly state that it is amending the Agreement andsigned by both parties.

 

12.6. Orderof precedence; headings

In the eventof a conflict between this agreement and any Order Form, the terms of the OrderForm shall govern. Headings are for information purposes only.

 

12.7.Third-party beneficiaries

FLIP-INC'sAffiliates and FLIP-INC and its Affiliates’ suppliers and distributors areintended third party beneficiaries of Sections 8 – 10 (inclusive). Except asexpressly set forth in the foregoing, there are no third party beneficiaries tothese terms.

 

13.Definitions

“Affiliate”means any entity that directly or indirectly Controls, is Controlled by, or isunder common Control with a party.

 

“ConfidentialInformation” means information that one party (or Affiliate) discloses to theother party under the agreement, and that is marked as confidential or wouldnormally be considered confidential information under the circumstances.Customer Data is your Confidential Information. Confidential Information doesnot include information that is independently developed by the recipient, isshared with the recipient by a third party without confidentiality obligations,or becomes public through no fault of the recipient.

 

“Control”means control of greater than 50% of the voting rights or equity interests of aparty.

 

“CustomerData” means data submitted, stored, sent or received via the Services by you,at your direction, or as part of the Services for you.

 

“Delegates”means employees, Affiliates, agents, and professional advisors.

 

“including”means including, without limitation.

 

“LegalProcess” means an information disclosure request made under law, governmentalregulation, court order, subpoena, warrant, governmental regulatory or agencyrequest, or other valid legal authority, legal procedure, or similar process.

 

“AccountingOrder Form” means the ordering document or website page for the Services.

 

"FLIP",“FLIP-INC”, “we”, and “us” means FLIP4WARD Inc.