Terms of Service

FLxTALK+ Terms of Service

FLXTALK+ TERMS AND CONDITIONS
July 2020

These Terms and Conditions are referenced and incorporated into certain written agreements (each, a “Referencing Agreement”) between Sloan LLC (dba FLxTalk+ LLC) or its affiliates, and their customers (Customer, Client or You) that reference these Terms and Conditions (“Terms”) for FLxTalk+ Services, as applicable, and sets forth the Terms and Conditions under which FLxTalk+ or its affiliates will provide services to Customer.
*Capitalized terms not defined in context are defined at the end of these Terms and Conditions.

FLXTALK+ TERMS AND CONDITIONS

FLxTalk+ Services. FLxTalk+ agrees to supply the services set forth in the Referencing Agreement (“FLxTalk+ Services”), and Customer agrees to receive the FlxTalk+ Services from FLxTalk+, in accordance with these Terms.
Payment. The following payment terms will apply:

2.1     Customer will pay the fees specified in the Referencing Agreement. Upon 60 days or more written notice to the Customer prior to the end of the Term, FLxTalk+ may change any fees for services provided after the end of the Term. Customer will pay all taxes levied against or upon the services (as amended by the parties from time to time) or otherwise provided by FLxTalk+.
2.2     All Recurring Fees are invoiced monthly in advance, with any partial months pro-rated. Variable charges, if applicable, will be billed monthly in arrears.
2.3     All Recurring Fees (including the first month’s fee) and charges for other, non-recurring services will be payable within 30 days of the invoice date.
2.4     A 3% service charge will be applied in addition to the total amount invoiced for all payments processed using a credit card.

Rights Granted.

3.1     For the duration of the Term and subject to Customer payment obligations, and except as otherwise set forth in these Terms, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the FLxTalk+ Services, solely for Customer internal business operations and subject to these Terms and any Referencing Agreement.  Customer may allow Users to use the FLxTalk+ Services for this purpose and Customer is responsible for User’s compliance with these Terms and any Customer order.                                                                                                          3.2     Customer does not acquire under these Terms any right or license to use the FLxTalk+ Services in excess of the scope and/or duration of the FLxTalk+ Services stated in the Referencing Agreement.  Upon the end of the FLxTalk+ Services, Customer’s right to access and use the FLxTalk+ Services will terminate.
3.3     To enable FLxTalk+ to provide Customer and Users with the FLxTalk+ Services, Customer grants FLxTalk+ the right to use, process and transmit, in accordance with these Terms and any Customer order, Customer Content and Customer Applications for the duration of the Term plus any additional post-termination period during which FLxTalk+ provides Customer with access to retrieve an export file of Customer Content and Customer Applications.  If Customer Applications include third party programs, Customer acknowledges that FLxTalk+ may allow providers of those third party programs to access the Services Environment, including Customer Content and Customer Applications, as required for the interoperation of such third party programs with the FLxTalk+ Services.  FLxTalk+ will not be responsible for any use, disclosure, modifications or deletion of Customer Content or Customer Applications resulting from any such access by third party program providers or for the interoperability of such third party programs with the FLxTalk+ Services.                     3.4     The FLxTalk+ Services may contain or require the use of Separately Licensed Third Party Technology.  Customer is responsible for complying with the Separate Terms that govern Customer use of Separately Licensed Third Party Technology.  FLxTalk+ may provide certain notices to Customer in connection with such Separately Licensed Third Party Technology.  The third party owner, author or provider of such Separately Licensed Third Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third Party Technology.
3.5    As part of the FLxTalk+ Services, FLxTalk+ may provide Customer with access to Third Party Content within the Services Environment.  The third party owners, author or provider of such Third Party Content retains all ownership and intellectual property rights in and to that content, and Customer rights to use such Third Party Content are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider.

Ownership and Restrictions. Customer retains all ownership and intellectual property rights in and to Customer Content and Customer Applications. FLxTalk+ or its licensors retain all ownership and intellectual property rights to the FLxTalk+ Services, including FLxTalk+ Programs and Ancillary Programs, and derivative works thereof, and to anything developed or delivered by or on behalf of FLxTalk+ under these Terms. Customer may not, and may not cause or permit others to:

4.1 remove or modify any program markings or any notice of FLxTalk+’s or its licensors’ proprietary rights;
4.2 make the programs or materials resulting from the FLxTalk+ Services (excluding Customer Content and Customer Applications) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted in writing for the specific Services that Customer has acquired);
4.3 modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the FLxTalk+ Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs), or access or use the FLxTalk+ Services in order to build or support, and/or assist a third party in building or supporting, products or FLxTalk+ Services competitive to FLxTalk+;
4.4 perform or disclose any benchmark or performance tests of the FLxTalk+ Services, including the FLxTalk+ Programs;
4.5 perform or disclose any of the following security testing of the Services Environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
4.6 license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the FLxTalk+ Services, FLxTalk+ Programs, Ancillary Programs, Services Environments or FLxTalk+ materials to any third party, other than as expressly permitted under the terms of the applicable order.

Service Specifications.

5.1 The FLxTalk+ Services are subject to and governed by the Referencing Agreement. The Referencing Agreement may define provisioning and management processes applicable to the FLxTalk+ Services, functional and technical aspects of the FLxTalk+ Programs, as well as any FLxTalk+ Services deliverables (collectively, Service Specifications). 5.2 FLxTalk+ may make changes or updates to the FLxTalk+ Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at FLxTalk+’s discretion; however, FLxTalk+ changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable FLxTalk+ Services provided to Customer for the duration of the Term.

Use of FLxTalk+ Services.

6.1 Customer is responsible for identifying and authenticating all Users, for approving access by such Users to the FLxTalk+ Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Customer and Users’ usernames, passwords and accounts with FLxTalk+, Customer accepts responsibility for the confidentiality and timely and proper termination of user records in Customer local identity infrastructure or on Customer local computers. FLxTalk+ is not responsible for any harm caused by Users, including individuals who were not authorized to have access to the FLxTalk+ Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis by Customer. Customer is responsible for all activities that occur under Customer and Users’ usernames, passwords or accounts or as a result of Customer or Users’ access to the FLxTalk+ Services and agrees to notify FLxTalk+ immediately of any unauthorized use. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the FLxTalk+ Services.
6.2 Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the FLxTalk+ Services, including for the FLxTalk+ Programs, as such Patches are generally released by FLxTalk+ or its affiliates. FLxTalk+ is not responsible for performance or security issues encountered with the FLxTalk+ Services that result from the application of third party Patches that are necessary for the proper function and security of the FLxTalk+ Services. Except for emergency or security related maintenance activities, FLxTalk+ will coordinate with Customer the scheduling of application of Patches, where possible.
6.3 Customer acknowledges and understands that the FLxTalk+ Services are not a telephone service and FLxTalk+ is not a telephone carrier. The voice component of FLxTalk+ Services is commonly referred to as “Voice over IP” (VoIP) and none of the services provided by FLxTalk+ shall constitute a telephone service which are subject to different regulatory treatment than the FLxTalk+ Services.
You acknowledge and understand that FLxTalk+ Services are Internet based and therefore, 911/E911 services may not be available or may be limited. Reasons under which 911 services may be limited or not available include but are not restricted to:

Internet Connection Failure.
Loss of Electrical Power.
Number Flexibility and Service Portability. Because the FLxTalk+ Services permit the Customer to use the Services anywhere wired broadband Internet is available, the VoIP 911 Service functions differently than traditional 911 Service:
- Because the Customer’s address(es) may not be associated with their telephone number, Customer agrees to provide FLxTalk+ with the street address(es) where FLxTalk+ Services will be used (“Registered Location(s)”) upon the Commencement Date of this Agreement.
- Customer agrees to update their Registered Location(s) if any of the covered devices are relocated. If Customer fails to update Registered Location(s), any 911 calls made using the FLxTalk+ Services will be routed based on the previously provided Registered Location and therefore may not be routed to the appropriate local emergency responder or Public Safety Answering Point (PSAP) for the new location.
- The VoIP Service will, where possible, automatically transmit the Registered Location to the PSAP, therefore, Customer must update the Registered Location to ensure the Services transmits accurate location information to the PSAP.
- There may be a delay in making the new Registered Location(s) available to properly route 911 calls and advise PSAPs of your new Registered Location(s).
- Direct routing to PSAPs of VoIP 911 Service may not be available in some parts of the country, in which case the Services will route the call to the National Emergency Call Center. The call center may not automatically receive the address and telephone number from where the call originated and trained agents will ask for the name, location, and telephone number of the person calling 911 and will contact the appropriate PSAP to send help. Customer understands this may delay the public safety response time and there may be an additional delay before emergency services arrive.

Customer agrees to notify all employees and will instruct employees to notify all household residents, guests and other persons who may be present at the physical location where the FLxTalk+ VoIP Services are utilized that 911 service may not be available or may be limited from traditional 911 service.
FLxTalk+ disclaims all responsibility for the performance of PSAPs, the National Emergency Call Center, and all other third parties involved in the provision of emergency response services.
You acknowledge and agree that neither FLxTalk+ nor their officers or employees may be held liable for any claim, damage, loss, fine, penalty or cost (including, without limitation, attorneys’ fees) and you hereby waive any and all such claims or causes of action, arising from or relating to the provision of all types of emergency services to you. You further agree and acknowledge that you are indemnifying and holding harmless FLxTalk+ from any claim or action for any caller placing such a call without regard to whether the caller is you or an employee or customer or agent of yours. You acknowledge and agree that any injury arising out of a lack of or misrouting of 911 calls, regardless of whether the call failed or was routed by a Public Safety Answering Point or an official emergency operator, is neither the fault nor liability of FLxTalk+ and you hold FLxTalk+ and its subsidiaries and affiliates, as well as their respective officers, directors, managers, employees and agents harmless from any damages or liabilities. These limitations apply to all claims regardless of whether they are based on breach of contract, breach of warranty, product liability, tort and any other theories of liability.
FLxTalk+ strongly recommends that Customer always has an alternative means of accessing traditional 911 services (such as a cell phone).

Distribution of Software.

7.1 All software that FLxTalk+ provides for Customer use is subject to these Terms, including software that FLxTalk+ may authorize Customer to install on devices located on their premises, if applicable. Other than software for which Customer holds an active end user license between Customer and the software manufacturer, Customer may not use any software FLxTalk+ provides after the expiration of the Term or termination of the Referencing Agreement, or the particular service for which it was provided, and Customer may not copy the software unless expressly permitted by these Terms. Customer may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software FLxTalk+ provides. Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software FLxTalk+ provides except and to the extent that Customer is expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to FLxTalk+.
7.2 In the event FLxTalk+ distributes any open source software to Customer as part of the FLxTalk+ Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses) then such open source software is subject to the terms of the applicable open source license. There are no warranties provided with respect to any open source software and all implied warranties are disclaimed. In the event of any conflict between the terms herein and the applicable open source license with respect to any open source software, the terms of the applicable open source license shall control. In addition to the terms of these Terms, Customer’s use of any Cisco® software is governed by Cisco’s license terms.

End of FLxTalk+ Services.

8.1 Upon the end of the FLxTalk+ Services, Customer no longer has rights to access or use the FLxTalk+ Services, including the associated FLxTalk+ Programs and Services Environments; however, at Customer’s request, as long as Customer is not in default, and for a reasonable fee to be determined by FLxTalk+, for a period of up to 30 days after the end of the applicable Term, FLxTalk+ will make available Customer Content and Customer Applications then in the Services Environment for the purpose of retrieval by Customer. At the end of such 30 day period, and except as may be required by law, FLxTalk+ will delete or otherwise render inaccessible any of Customer Content and Customer Applications that remain in the Services Environment.
8.2 FLxTalk+ may temporarily suspend Customer passwords, account, and access to or use of the FLxTalk+ Services if Customer or Users violate any provision of these Terms, or if in FLxTalk+’s reasonable judgment, the FLxTalk+ Services or any component thereof are about to suffer a threat to security or functionality. FLxTalk+ will provide notice to Customer of any such suspension in FLxTalk+’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. FLxTalk+ will use reasonable efforts to re-establish the affected FLxTalk+ Services promptly after FLxTalk+ determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, FLxTalk+ will make available to Customer (as is reasonably available) Customer Content and Customer Applications as existing in the Services Environment on the date of suspension. FLxTalk+ may terminate the FLxTalk+ Services if any of the foregoing causes of suspension is not cured within 30 days after FLxTalk+’s initial notice thereof. Any suspension or termination by FLxTalk+ under this paragraph shall not excuse Customer from Customer’s obligation to make payment(s) under these Terms and Referencing Agreement.

Service Tools and Ancillary Programs and Services.

9.1 FLxTalk+ may use tools, scripts, software, and utilities (collectively, “Tools”) to monitor and administer the FLxTalk+ Services and to help resolve Customer FLxTalk+ service requests. The Tools will not collect or store any of Customer Content or Customer Applications residing in the Services Environment, except as necessary to provide the FLxTalk+ Services or troubleshoot service requests or other problems in the FLxTalk+ Services. Information collected by the Tools (excluding Customer Content and Customer Applications) may also be used to assist in managing FLxTalk+’s product and service portfolio, to help FLxTalk+ address deficiencies in its product and service offerings, and for license and FLxTalk+ Services management.
9.2 As part of the FLxTalk+ Services, FLxTalk+ may provide Customer with on-line access to download or arrange access to certain Ancillary Programs and Services for use with the FLxTalk+ Services. These Ancillary Programs and Services will typically have separate terms and conditions, if FLxTalk+ does not specify separate terms and conditions for such Ancillary Programs, then, subject to Customer payment obligations, Customer has the non-exclusive, non-assignable, royalty free, worldwide limited right to use such Ancillary Programs and Services solely to facilitate Customer access to, operation of, and/or use of the FLxTalk+ Services, subject to these Terms and Customer orders, including the Service Specifications. Customer’s right to use such Ancillary Programs and Services will terminate upon the earlier of FLxTalk+’s notice, the end of the FLxTalk+ Services associated with the Ancillary Programs and Services, or the date on which the license to use the Ancillary Programs and Services ends under the separate Ancillary Terms specified for such Ancillary Programs and Services.

Export

10.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the FLxTalk+ Services. Customer agrees that such export laws govern Customer use of the FLxTalk+ Services (including technical data) and any FLxTalk+ Services deliverables provided under these Terms, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
10.2 Customer acknowledges that the FLxTalk+ Services are designed with capabilities for Customer and Users to access the Services Environment without regard to geographic location and to transfer or otherwise move Customer Content and Customer Applications between the Services Environment and other locations such as User workstations. Customer is solely responsible for the authorization and management of User accounts, as well as export control and geographic transfer of Customer Content and Customer Applications.
SERVICE LEVEL AGREEMENT FOR FLxTALK+ SERVICES

Service Level Agreement for FLxTalk+ Customers. FLxTalk+ strives to provide Customer uninterrupted access to unified voice and collaboration services for the Customer’s business communications. The Service Level Agreement does not cover outages caused by equipment and/or events not under the direct control of FLxTalk+, outages due to Customer equipment, outages caused by Third Party service providers, other than those directly contracted by FLxTalk+, or caused by individuals not directly employed by FLxTalk+ or its agents. This Service Level Agreement does not cover outages due to Permitted Downtime or Emergency Maintenance, which will be broadcast to all customers in advance.
Control Plane.

12.1 The Control Plane is the FLxTalk+ Servers’ application programming interface (“API”) used to create, manage, and delete FLxTalk+ Servers. FLxTalk+ shall cause the FLxTalk+ Servers Control Plane to be available 99.9% of the time in any billing period.
12.2 “Monthly Availability” is calculated by the number of API errors when compared to the total number of Valid API Requests, on a per customer, for a given monthly billing period, as follows (represented as a percentage): 1 – (Total API Errors)/(Total Valid API Requests).
12.3 If Monthly Availability falls below the guaranteed levels, a credit may be issued to Customer. Credits will be calculated as a percentage of Customer’s pro-rated FLxTalk+ Monthly Recurring Fees for the monthly billing period.

Data Plane. The Data Plane includes FLxTalk+ Servers created via the Control Plane plus supporting systems and services required for the proper functioning and availability of those FLxTalk+ Services. FLxTalk+ guarantees proper functioning of the FLxTalk+ Servers and the supporting systems and services.

Credits for Control and Data Planes will be allocated as follows:
Monthly Availability
Credit Percentage
100% - 99.5%: 0%
≤ 99.4% – 99.0%: 10%
≤ 98.9% – 98.0%: 20%
< 98.0%: 30%

Limitations. Customer is not entitled to a credit if Customer is in breach of these Terms or Referencing Agreement with FLxTalk+ (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms or Referencing Agreement or Customer’s misuse of the FLxTalk+ Services. Customer is not entitled to a credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within FLxTalk+’s control.
Customer Request Service Credit. In order to receive any of the service credits described above, Customer must notify FlxTalk+ within 15 days from the time Customer becomes eligible to receive a service credit. Credit will be denied if FLxTalk+ can provide documentation or reporting to show actual availability as defined above was within acceptable levels. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the FLxTalk+ Services Fee for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods. The remedies set forth in these Terms are the sole and exclusive remedies for FLxTalk+ Server unavailability.
Failure to comply with this requirement will forfeit Customer’s right to receive a service credit.
Service Level Agreement Update Notification. FLxTalk+ reserves the right to alter this Service Level Agreement without advanced notice.

GENERAL TERMS.
THE FOLLOWING TERMS ARE APPLICABLE TO THE TERMS AND CONDITIONS FOR FLXTALK+ SERVICES

Compliance with Laws. The parties will comply with all applicable laws, rules, regulations, and ordinances.
Confidentiality. Each party recognizes and acknowledges that during the Term it may be given access to valuable and important confidential technical and business information, processes and software of the other party, whether oral or written, which is claimed by the disclosing party as proprietary and which shall be marked as proprietary by that party prior to disclosure, or if disclosed orally, shall be identified as proprietary at the time of oral disclosure (“Confidential Information“). Confidential Information does not include (a) information known to the recipient at the time of disclosure, which can be documented; (b) information learned by the recipient from a third party lawfully holding same and not disclosing same in violation of an obligation of confidentiality; (c) information that subsequently becomes generally known other than as the result of wrongful disclosure; and (d) information required to be disclosed publicly by law or regulation to the extent so disclosed, but only after prior written notice to discloser of such requirement prior to such disclosure. Each party agrees that, except as authorized by the disclosing party, recipient shall not use any Confidential Information of the other party except for the purposes of these Terms and shall not disclose such information unless authorized in writing by the disclosing party.
Warranty. FLxTalk+ hereby represents and warrants that services shall be performed in a professional and workmanlike manner and in accordance with any agreed-upon specifications. FLXTALK+ ASSUMES NO LIABILITY FOR CUSTOMER’S SELECTION OF PRODUCTS, SERVICES, AND SOFTWARE APPLICATIONS, OR THE CAPACITY OR CONNECTIVITY OF SUCH PRODUCTS, SERVICES, OR SOFTWARE APPLICATIONS, OR ANY FUTURE OBSOLESCENCE OF CUSTOMER’S PRODUCTS, SERVICES, OR SOFTWARE APPLICATIONS OR THE FAILURE OF THE PRODUCT MANUFACTURER, SERVICE PROVIDER, OR SOFTWARE PROVIDER TO SUPPORT SUCH PRODUCTS, SERVICE, OR SOFTWARE APPLICATIONS AND, IN ANY AND ALL SUCH EVENTS, CUSTOMER SHALL PAY ALL OF THE COSTS OF UPGRADES OR REPLACEMENT. ALL PRODUCTS, SERVICES, AND SOFTWARE CONNECTED TO THE INTERNET, TO A NETWORK, OR TO OTHER COMMUNICATIONS DEVICES OR SERVICES, ARE SUBJECT TO UNAUTHORIZED ACCESS, “HACKING,” AND OTHER DISRUPTION AND NO MEASURES TO PREVENT SUCH DAMAGES ARE “FOOLPROOF.” THEREFORE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLXTALK+ DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SERVICES, PRODUCTS AND SOFTWARE. THE WARRANTIES AND REMEDIES SET FORTH IN THESE TERMS AND REFERENCING AGREEMENT ARE EXCLUSIVE AND NO OTHER WARRANTY OR REMEDY OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING THE WARRANTIES OF PERFORMANCE, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, ALL OF WHICH CUSTOMER WAIVES IN FULL.
Indemnity. Each party (the “Indemnitor”) agrees to defend, at its own expense, and indemnify and hold harmless, the other party, its predecessors and successors, and all of its directors, officers, managers, members, employees, affiliates and agents (collectively, the “Indemnitee”) from and against any and all damages, demands, expenses, claims, liability, injuries, suits, and proceedings brought by a third party against Indemnitee, including reasonable attorneys’ fees, as a result of (i) Indemnitor’s gross negligence or willful misconduct, or (ii) a violation of any material federal, state, local or foreign law, regulation, or ordinance by Indemnitor or any person acting at its direction.

21.1. Indemnity Based on Intellectual Property Rights Violations. If a third party makes a claim against either Customer or FLxTalk+ (“Recipient” which may refer to Customer or FLxTalk+ depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by either Customer or FLxTalk+ (“Provider” which may refer to Customer or FLxTalk+ depending on which party provided the Material) and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at the Provider’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following: (a) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law); (b) gives the Provider sole control of the defense and any settlement negotiations; and (c) gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects FLxTalk+’s ability to meet its obligations under the relevant order, then FLxTalk+ may, at its option and upon 30 days prior written notice, terminate the Referencing Agreement.
The Provider will not indemnify the Recipient if the Recipient: (a) alters the Material or uses it outside the scope of use identified in the Provider’s user or program documentation or Service Specifications, (b) uses a version of the Material which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was made available to the Recipient, or (c) continues to use the applicable Material after the end of the license to use that Material if the Recipient knows of such expiration date. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, service, data, hardware or material not furnished by the Provider. FLxTalk+ will not indemnify Customer for any portion of an infringement claim that is based upon the combination of any Material with any products or Services not provided by FLxTalk+. FLxTalk+ will not indemnify Customer to the extent that an infringement claim is based on any Material from a third party portal or other external source that is accessible to Customer within or from the services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, etc.). FLxTalk+ will not indemnify Customer for infringement caused by Customer’s actions against any third party if the services as delivered to Customer and used in accordance with these Terms would not otherwise infringe any third party intellectual property rights. FLxTalk+ will not indemnify Customer for any intellectual property infringement claim(s) known to Customer at the time Services rights are obtained.

Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THESE TERMS OR REFERENCING AGREEMENT), DATA, OR DATA USE. FLXTALK+’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE REFERENCING AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS ACTUALLY PAID TO FLXTALK+ FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY LESS ANY REFUNDS OR CREDITS RECEIVED BY CUSTOMER FROM FLXTALK+ DURING SUCH THREE MONTH PERIOD.
Liens and Encumbrances. Customer (and its clients) will not have the power, authority or right to create and will not permit tax liens, mechanics’ liens, or builders liens with respect to work performed, in connection with the equipment or use of the FLxTalk+ Service.
Credit Authorization. Customer hereby authorizes FLxTalk+ to obtain credit information and bank and other financial references regarding Customer for the purposes of assessing Customer’s credit worthiness, and Customer will promptly execute and deliver to FLxTalk+ such further documents and assurances and take such further actions as FLxTalk+ may from time to time reasonably request.
Force Majeure. Neither party hereto shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both parties hereto will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed services and affected orders upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the services.
Notices. Every notice, approval, request, authorization, direction or other communication under these Terms will be given in writing to the party at the address first set forth in the Referencing Agreement for such party and will be deemed to have been delivered and given for all purposes (i) on the delivery date, if delivered personally: (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt, if sent by courier; (iii) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (iv) upon personal acknowledgement by the recipient, if sent by email.
Assignment. Customer shall not assign the Referencing Agreement or any of its rights or obligations hereunder, without the prior written consent of FLxTalk+, such consent not to be unreasonably withheld. Notwithstanding the foregoing, prior written consent of FLxTalk+ is not required to assign any Agreement by operation of law or to any successor-in-interest acquiring substantially all of Customer’s stock or assets.
Survival. Provisions that survive termination or expiration of the Referencing Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
Entire Agreement. These terms in conjunction with the Referencing Agreement supersedes all previous Agreements between the parties. The Referencing Agreement and any subsequent agreements or addendums constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto.
No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
Severability. If any of these Terms of are found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the Referencing Agreement.
Relationship. The relationship of FLxTalk+ to Customer will be that of an independent contractor, and neither FLxTalk+ nor any employee of FLxTalk+ or its affiliates will be deemed to be an agent or employee of Customer.
Choice of Law and Venue. These Terms and Referencing Agreement are governed by the substantive and procedural laws of the Commonwealth of Virginia and Customer and FLxTalk+ agree to submit to the exclusive jurisdiction of, and venue in, the courts in Montgomery County in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to the Referencing Agreement or to orders placed under it.
Further Assurances. Each of the parties will promptly execute and deliver to the other at the cost of the other such further documents and assurances and take such further actions as the other may from time to time request in order to more effectively carry out the intent and purpose of the Referencing Agreement and to establish and protect the rights, interests and remedies intended to be created in favor of the other.
Attorney’s Fees. If Customer defaults in the performance of any of the terms, covenants, agreements or conditions contained in these Terms, and FLxTalk+ places the enforcement of these Terms and the Referencing Agreement, or any part thereof, in the hands of an attorney or files suit upon the same, Customer agrees to pay FLxTalk+’s reasonable attorneys’ fees and costs.
Waiver of Trial by Jury. ANY COURT PROCEEDINGS COMMENCED BY OR AGAINST EITHER PARTY SHALL BE RESOLVED BY A COURT WITHOUT A JURY, AND EACH PARTY WAIVES ITS RIGHT TO A JURY AS TO ANY DISPUTE OR CLAIMS ARISING UNDER OR RELATING TO THESE TERMS AND REFERENCING AGREEMENT, WHETHER FOR BREACH OR ENFORCEMENT OF CONTRACT, TORT OR OTHERWISE.

DEFINITIONS.
THE FOLLOWING TERMS ARE DEFINED FOR PURPOSES OF THE TERMS AND CONDITIONS FOR FLXTALK+ SERVICES
“Ancillary Programs and Services” means any services, software agent or tool owned or licensed by FLxTalk+ or any affiliate of FLxTalk+ that FLxTalk+ makes available to Customer for download as part of the FLxTalk+ Services for purposes of facilitating Customer access to, operation of, and/or use with, the Services Environment. The term “Ancillary Program” does not include Separately Licensed Third Party Technology.
“Ancillary Terms” refers to separate terms between Customer and a third party FLxTalk+ affiliate licensor or service provider, through agreement, terms and conditions, readme or notice files and that apply to Ancillary Programs and Services.
“FLXTALK+ Programs” refers to the software products owned or licensed by FLXTALK+ or any of its affiliates to which FLXTALK+ grants Customer access as part of the FLxTalk+ Services, including Program Documentation, and any program updates provided as part of the FLxTalk+ Services. The term “FLXTALK+ Programs” does not include Separately Licensed Third Party Technology.
“Customer Applications” means all software programs, including any source code for such programs, that Customer or Users provide and load onto, or create using, any FLxTalk+ Services. Services under these Terms, including FLXTALK+ Programs and Services Environments, FLXTALK+ intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Customer Applications.”
“Customer Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material (other than Customer Applications), in any format, provided by Customer or Users that reside in, or run on or through, the Services Environment.
“Downtime” means the service is unavailable for a Customer, exclusive of permitted downtime.
“Effective Date” means the date provided in the Referencing Agreement.
“Emergency Maintenance” means critical unforeseen maintenance (e.g. repairs, modifications, or upgrades) needed to ensure security or reliability.
“Internet” means the international network of computer systems, or related equipment and software, comprising the interconnected worldwide network of computer networks used to transmit information.
“Maximum Service Credit” means: For FLxTalk+ Services: the aggregate maximum number of service credits or credit percentage to be credited by FLxTalk+ to customer in a single calendar month for FLxTalk+ Services are outlined in the Service Level Agreement for FLxTalk+ Services.
“On Their Premises” means FLxTalk+ customer site or designated alternate location not within FLxTalk+ or its affiliates.
“Permitted Downtime” means:
For FLxTalk+ Services: the service is unavailable for Customer use during a prescheduled period which has been announced at least ten business days in advance. Unless otherwise communicated, scheduled downtime shall not be more than 8 hours per month for major system configuration changes, upgrades or normal maintenance.
“Recurring Fees” means those charges that are billed periodically, as further outlined in the Referencing Agreement.
“Separate Terms” refers to separate license terms between Customer and a third party licensor or service provider, through agreement, terms and conditions, readme or notice files and that apply to Separately Licensed Third Party Technology.
“Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of these Terms.
“Services” means, collectively, the FLxTalk+ Services that Customer has ordered.
“Services Environment” refers to the combination of hardware and software components owned, licensed or managed by FLxTalk+ or its affiliates to which FLxTalk+ grants Customer and Users access as part of the FLxTalk+ Services. As applicable and subject to the terms of the Referencing Agreement and Customer’s order, FLXTALK+ Programs, Third Party Content, Customer Content and Customer Applications may be hosted in the Services Environment.
“Term” shall mean the Initial Term and any Renewal Term, as provided in the Referencing Agreement.
“Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of FLxTalk+ and made available to Customer through, within, or in conjunction with Customer use of, the FLxTalk+ Services. Examples of Third Party Content include data feeds from social network services, RSS feeds from blog posts, data libraries and dictionaries. Third Party Content does not include Separately Licensed Third Party Technology.
“Users” means those employees, contractors, and end users, as applicable, who use the FLxTalk+ Services in accordance with these Terms.