Terms & Conditions of Use

These Terms of Use (“Terms” or “Agreement”) are a legal agreement between you and FlexCal, Inc. and govern your use of all the text, data, information, software, graphics, photographs and more that we and our affiliates may make available to you (all of which we refer to as “Documentation”), including our websites and any services, plug-ins, mobile apps, software or other Downloadable Tools (as defined below) that we may provide through any of our websites and mobile apps (the “Platform” or “Website” and together with the Materials, these “Service(s)”).

The use of this Website, mobile app and services provided by FlexCal are subject to the following Terms & Conditions, all parts and sub-parts of which are specifically incorporated by reference here. This Agreement shall govern the use of all pages on this Website and mobile app (hereinafter collectively referred to as "Website") and any services provided by or on this Website ("Services").

READ THESE TERMS CAREFULLY BEFORE BROWSING THIS WEBSITE. USING THESE SERVICES INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THESE SERVICES IF YOU DO NOT ACCEPT THESE TERMS. THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH FLEXCAL.

1. DEFINITIONS

The parties referred to in this Agreement shall be defined as follows:

a) FlexCal, Company, Us, We: FlexCal, Inc., the Company, as the creator, operator, and publisher of the Website, makes the Website, and certain Services on it, available to users. FlexCal, Inc., Company, Us, We, Our, Ours and other first-person pronouns will refer to the Company, as well as all employees and affiliates of the Company.

b) FlexCal “Users” are the people who have created a FlexCal account (also referred to as “Customer(s)”).  You, the User, the Customer, as the user of the Website, will be referred to throughout this Agreement with second-person pronouns such as You, Your, Yours, or as User or Customer. c) FlexCal “Invitees” are people who have scheduled a meeting with a FlexCal User but may or may not have registered with FlexCal.

d) FlexCal “Viewer” is a person who visits the FlexCal Website but may or may not be a FlexCal User or FlexCal Invitee.

e) Parties: Collectively, the parties to this Agreement will be referred to as Parties.

2. CONSENT & ACCEPTANCE

By using the Website, You warrant that You have read and reviewed this Agreement and that You agree to be bound by it. If You do not agree to be bound by this Agreement, please leave the Website immediately. The Company only agrees to provide use of this Website and Services to You if You consent to this Agreement.

If you are entering into these Terms on behalf of a company or other organization, you hereby represent and warrant that you are authorized to enter into these Terms on behalf of such company or other organization (“Authorized User”).

3. LICENSE TO USE WEBSITE

FlexCal’s Services facilitate the online scheduling of appointments. You may access and use the Services only in accordance with these Terms. Please note that these Terms govern your use of the Services, including, but not limited to, the process through which your Invitees schedule appointments with you.

When using the features of the Services you are subject to any agreements, policies, or guidelines applicable to such features that may be posted from time to time. All such agreements, policies or guidelines, including the Privacy Notice, the End User License Agreement and the Data Processing Addendum (as applicable) are hereby incorporated by reference into these Terms.

The Company may provide You with certain information as a result of Your use of the Website or Services. Such information may include, but is not limited to, documentation, data, or information developed by the Company, and other materials that may assist in Your use of the Website or Services ("Company Materials"). Subject to this Agreement, the Company grants You a limited, personal, non-exclusive, non-transferable and revocable license to use the Company Materials solely in connection with Your use of the Website and Services following the set-up of a Free Account or Paid Account as set forth below. The Company Materials may not be used for any other purpose, and this license terminates upon Your cessation of use of the Website or Services or at the termination of this Agreement.

Subject to these Terms, we also grant you a limited, personal, non-exclusive, non-transferable license to download, install and operate any plug-ins, software, information, or other content that we may have specifically identified within the Website as available for download solely in connection with accessing the Website, including, but not limited to, relevant FlexCal browser extensions (“Downloadable Tools”). Such Downloadable Tools are also subject to the additional terms provided to you upon download, including without limitation our End User License Agreement.

You have no other rights in the Service and shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and to the extent Customer is a company or other organization, shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) knowingly use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. If you make copies of any portion of this Website while engaging in Permitted Purposes then you agree to keep on these copies all of our copyright and other proprietary notices as they appear on this Website.

4. INTELLECTUAL PROPERTY

You agree that the Website and all Services provided by the Company are the property of the Company, including all copyrights, trademarks, trade secrets, patents, and other intellectual property ("Company IP"). You agree that the Company owns all right, title and interest in and to the Company IP and that You will not use the Company IP for any unlawful or infringing purpose. You agree not to reproduce or distribute the Company IP in any way, including electronically or via registration of any new trademarks, trade names, service marks or Uniform Resource Locators (URLs), without express written permission from the Company.

5. USER OBLIGATIONS

As a user of the Website or Services, You may be asked to register with Us. When You do so, You will choose a user identifier, which may be Your email address or another term, as well as a password. You may also provide personal information, including, but not limited to, Your name. You are responsible for ensuring the accuracy of this information. This identifying information will enable You to use the Website and Services. You must not share such identifying information with any third party, and if You discover that Your identifying information has been compromised, You agree to notify Us immediately in writing. Email notification will suffice. You are responsible for maintaining the safety and security of Your identifying information as well as keeping Us apprised of any changes to Your identifying information. Providing false or inaccurate information, or using the Website or Services to further fraud or unlawful activity, is grounds for immediate termination of this Agreement.

6. ACCEPTABLE USE

FlexCal authorizes your use of these Services only for Permitted Purposes. Any other use of these Services beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use which may result in the violation of various United States and international copyright laws, the deletion of your FlexCal account, or a block from the Services. Unless you have written permission from us stating otherwise, you are not authorized to use these Services in any of the following ways. (Note that these are examples only, and the list below is not a complete list of everything that you are not permitted to do):

You are not allowed to use the Services:

Our Service is not intended for and may not be used by individuals under 13 years of age except as provided by the Educational Use Section of these Terms. By registering for a FlexCal account, you state that you are at least 18 years of age, and you are responsible for ensuring that all FlexCal Users and Invitees are at least 13 years old. Creating an account with false information is a violation of our Terms, including creating an account on behalf of others or persons under the age of 18.

7. NOTICES & MESSAGES; MARKETING & ADVERTISING

By using the Services, you consent to receive emails from us. These emails may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services. These emails are part of your relationship with us. By scheduling a meeting as an Invitee with a FlexCal User, you consent to receive transactional emails related to the scheduled meeting (e.g. booking confirmations and reminders). If, as an Invitee, you provide your phone number for text notifications, you also consent to receive SMS notifications from FlexCal related to the scheduled meeting between you and the FlexCal User.

You agree that any notices, agreements, disclosures, or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree to keep your contact information up to date, and to monitor your email settings to ensure that you receive emails from us at your discretion and as necessary. 

The Company, through the Website and Services, may engage in affiliate marketing whereby the Company receives a commission on or percentage of the sale of goods or services on or through the Website. The Company may also accept advertising and sponsorships from commercial businesses or receive other forms of advertising compensation. This disclosure is intended to comply with the US Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements that may apply.

8. PRIVACY INFORMATION

Through Your Use of the Website and Services, You may provide Us with certain information. By using the Website or the Services, You authorize the Company to use Your information in the United States and any other country where We may operate. a) Information We May Collect or Receive: When You register for an account, You provide Us with a valid email address and may provide Us with additional information, such as Your name or billing information. Depending on how You use Our Website or Services, We may also receive information from external applications that You use to access Our Website, or We may receive information through various web technologies, such as cookies, log files, clear gifs, web beacons or others. b) How We Use Information: We use the information gathered from You to ensure Your continued good experience on Our Website, including through email communication. We may also track certain aspects of the passive information received to improve Our marketing and analytics, and for this, We may work with third-party providers.

c) How You Can Protect Your Information: If You would like to disable Our access to any passive information We receive from the use of various technologies, You may choose to disable cookies in Your web browser. Please be aware that the Company will still receive information about You that You have provided, such as Your email address.

9. EDUCATIONAL USE

Children under the age of 13 shall only use the Services under an account created by and under their parent/guardian or school/educator and are specifically prohibited from the use of the Services otherwise. If You are a school or educator in the United States and want your students to use the Services, Customer is and shall be responsible for complying with the U.S. Family Educational Rights and Privacy Act ("FERPA") and Children’s Online Privacy Protection Act of 1998 and its rules (collectively, “COPPA”).

To the extent that FlexCal has access to “education records,” as defined by FERPA and its implementing regulations, it is deemed and shall function as a “school official” with “legitimate educational interests” when fulfilling its responsibilities under this Agreement, and both parties agree that you have “direct control” over the use of “education records” as these terms are defined under FERPA.   FlexCal agrees to comply with its obligations under FERPA, including but not limited to the limitations on re-disclosure of personally identifiable information from education records set forth in FERPA and with the terms set forth below.

This means you shall notify those students' parents/guardians of the personally identifiable information that you will collect and share with us and obtain parental/guardian consent before its students sign up or use the Services. When obtaining such consent, you shall provide parents/guardians with a copy of our Privacy Policies, including our FERPA and COPPA Privacy Policy. You must keep all consents on file and provide them to us if we request them. Additionally, you shall be responsible for verifying the student parent relationship and shall be responsible for compliance with the right of a parent to review personal information provided by the child. You shall comply with such requirements by requesting and providing FlexCal with a data subject request for the aforementioned data, or any changes to such data requested by the parent, and providing the data to the parent after verification of the student parent relationship. If you are located outside of the United States, FlexCal shall rely upon you and you shall obtain any required consents or approvals from the parent or guardian of any student covered by similar laws and, as a condition to your and your students' use of the Services, you shall comply with such laws.

10. ASSUMPTION OF RISK

The Website and Services are provided for communication purposes only. You acknowledge and agree that any information posted on Our Website is not intended to be legal advice, medical advice, or financial advice, and no fiduciary relationship has been created between You and the Company. You further agree that Your purchase of any of the products or services on the Website is at Your own risk. The Company does not assume responsibility or liability for any advice or other information given on the Website.

11. Account Setup

To use the Website, you need to set up a FlexCal account. You may establish either a free account (“Free Account”) or a paid account (“Paid Account”). You are authorized by FlexCal to set up one Free Account only. FlexCal reserves the right to terminate any additional Free Accounts set up by you and any Free Accounts that have been inactive for over 6 months.

When you create an account, we collect registration-related information, which includes your email address and your name. Once you submit the required registration information, we alone will determine whether or not to approve your proposed account. If approved, you will be sent an email detailing how to complete your registration. For so long as you use the account, you agree to provide true, accurate, current, and complete information that can be accomplished by logging into your account and making relevant changes directly. You are responsible for complying with these Terms when you access this Website, whether directly or through any account that you may set up through or on this Website. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of this Website as well as paying related charges. You agree to choose a strong and secure password(s) and maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access this Website. Should you believe your password or security for this Website has been breached in any way, you must immediately notify us at support@FlexCal.me.

FlexCal or our billing processors collect your billing information when you upgrade to a Paid Account. All information is protected in accordance with our Privacy Notice.

Your account belongs to you. However, FlexCal controls the URL(s) assigned to your account and may change or deactivate the URL(s) without prior notice. If your account is paid for by another party for you to use (for example, paid and managed by your employer), the party paying for your account has the right to control it, manage it, and get reports on your use of the Paid Account. The party paying for your account does not have rights nor access to your separate, personal account(s) that are not paid for nor managed by that party.

12. SUBSCRIPTION PERIOD AND SUBSCRIPTION FEES

You agree to pay all applicable fees related to your use of this Website which are described fully on our pricing page. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on your particular subscription and utilized services.

The subscription period for Paid Accounts can be month-to-month, yearly, or another duration described more fully on our pricing page.

Paid Accounts are subject to fees based upon the account type you've selected. For renewals, FlexCal will automatically charge your payment method in the amount of the then-current fee for your type of account, plus applicable taxes. Each Renewal Term may include a price increase of the Consumer Price Index (“CPI”) + 3% unless we notify you of a different rate before each Renewal Term starts. All payments are non-refundable. To the extent that payment mechanisms are provided through third parties, you agree that FlexCal will have no liability to you arising out of the acts or omissions of such third parties. If applicable, you agree to maintain current billing information.

BY CREATING A PAID ACCOUNT, YOU CONSENT TO ALLOW FLEXCAL TO CHARGE YOUR PAYMENT METHOD, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL SUBSCRIPTION PERIOD AND FOR ADDITIONAL SUBSCRIPTION PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. PLEASE PRINT OUT THESE TERMS AND CONDITIONS FOR YOUR RECORDS.

13. RENEWAL AND CANCELLATION 

Paid Accounts will automatically renew for the same subscription period unless you cancel the account by the end of the then-current subscription period. You can cancel your account at any time within the FlexCal application by accessing the "billing" page, which is available under the "account" dropdown menu. Cancellation will be effective immediately. Please note that after you cancel your account, you may not be able to use or access the Platform and you will not be entitled to a refund of any fees that you've paid.

14. FAIR USE POLICY

FlexCal’s Fair Use Policy builds on existing use restrictions and helps us ensure that the services can be used fairly by every customer. Certain FlexCal features, like notifications, may be aggregated and collectively sent from fewer email addresses or phone numbers. This means those features are used concurrently by a number of customers. If a single customer places disproportionately high demands on the services, it may adversely affect the FlexCal experience for other users. The vast majority of our customers use the service considerately and their usage levels don't adversely impact service capacity. However, even the activity of a small number of customers who use the service inappropriately has the potential to significantly impact the service for other customers.

Customers’ usage of certain features like SMS notification is continuously monitored. Where a customer generates an exceptionally high load over a short period of time, FlexCal reserves the right to restrict usage, suspend access, or charge fees for excess usage in order to protect FlexCal’s platform and other customers’ usage. Only customers that consistently generate an exceptionally high load over a sustained period of time will be affected by this policy.

15. DATA LOSS

The Company does not accept responsibility for the security of Your account or content. You agree that Your use of the Website or Services is at Your own risk.

16. INDEMNIFICATION

You alone are responsible for any violation of these Terms by you. You agree to indemnify and hold FlexCal, its parents, subsidiaries, affiliates, officers, agents, employees, resellers or other partners, and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees (“Losses”), resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or the use thereof in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates any applicable law or regulation and any Third-Party Claims based on Customer’s or any Authorized Users’ (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by FlexCal or authorized by FlexCal in writing; or (iv) modifications to the Services not made by FlexCal, provided that Customer may not settle any Third-Party Claim against FlexCal unless FlexCal consents to such settlement, and further provided that FlexCal will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

You agree to defend and indemnify the Company and any of its affiliates (if applicable) and hold Us harmless against any and all legal claims and demands, including reasonable attorney's fees, which may arise from or relate to Your use or misuse of the Website or Services, Your breach of this Agreement, or Your conduct or actions. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense, if the Company wishes.

17. LEGAL COMPLIANCE

You agree to comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of our Website. FlexCal reserves the right to investigate complaints or reported violations of our Terms and to take any action we deem appropriate, including but not limited to canceling your User account, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, e-mail addresses, usage history, posted materials, IP addresses, and traffic information, as allowed under our Privacy Notice. You agree to promptly notify FlexCal in the event that you are made aware of any unauthorized or illegal use of the Website.

18. INTELLECTUAL PROPERTY

Our Services may contain our service marks or trademarks as well as those of our affiliates or other companies, in the form of words, graphics, and logos, and any and all intellectual property provided to Customer or any Authorized User in connection with the Services (“FlexCal IP”). Your use of our Services does not constitute any right or license for you to use such service marks/trademarks. Our Website is also protected under international copyright laws. The copying, redistribution, use, or publication by you of any portion of our Website is strictly prohibited. Your use of our Services do not grant you ownership rights of any kind in our Website or Materials. FlexCal reserves all rights not expressly granted to Customers in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the FlexCal IP.

19. THIRD-PARTY LINKS & CONTENT

Our Website may contain links to third party websites. These links are provided solely as a convenience to you. By linking to these websites, we do not create or have an affiliation with or sponsor such third party websites. The inclusion of links within our Website does not constitute any endorsement, guarantee, warranty, or recommendation of such third-party websites. FlexCal has no control over the legal documents and privacy practices of third-party websites, and by using them, you may be giving those third parties permission to use or control your information in ways FlexCal would not. As such, you access any third-party websites at your own risk.  The Company may occasionally post links to third party websites or other services. You agree that the Company is not responsible or liable for any loss or damage caused as a result of Your use of any third party services linked to from Our Website.

20. MODIFICATION & VARIATION

The Company may, from time to time and at any time without notice to You, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement.

a) To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, You agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.

b) You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear Your cache when doing so to avoid accessing a prior version of this Agreement. You agree that Your continued use of the Website after any modifications to this Agreement is a manifestation of Your continued assent to this Agreement.

c) In the event that You fail to monitor any modifications to or variations of this Agreement, You agree that such failure shall be considered an affirmative waiver of Your right to review the modified Agreement.

21. ENTIRE AGREEMENT

This Agreement constitutes the entire understanding between the Parties with respect to any and all use of this Website. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral, regarding the use of this Website.

22. SERVICE INTERRUPTIONS

The Company may need to interrupt Your access to the Website to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that Your access to the Website may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.

23. TERM, TERMINATION & SUSPENSION

The Company may terminate this Agreement with You at any time for any reason, with or without cause. The Company specifically reserves the right to terminate this Agreement if You violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material. If You have registered for an account with Us, You may also terminate this Agreement at any time by contacting Us and requesting termination. At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.

24. NO WARRANTIES

THE SERVICES ARE PROVIDED "AS IS" AND FLEXCAL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FLEXCAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FLEXCAL MAKES NO WARRANTY OF ANY KIND THAT THE FLEXCAL IP, OR SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. FLEXCAL STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY INTEGRATIONS.

THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE SERVICES ARE FREE OF PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES WILL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.

25. LIMITATION ON LIABILITY

FLEXCAL WILL NOT BE LIABLE TO YOU OR OTHERS FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE SERVICES OR YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY DOCUMENTATION TO OR FROM THE WEBSITE. IN NO EVENT WILL FLEXCAL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER FLEXCAL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. 

IN NO EVENT WILL FLEXCAL’S AGGREGATE LIABILITY OR FLEXCAL’S INDEMNIFICATION OBLIGATIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO FLEXCAL IN CONNECTION WITH THESE TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (II) US $100.00.

THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE AGREEMENT BETWEEN YOU AND FLEXCAL AND SHALL APPLY TO ALL CLAIMS OF LIABILITY, EVEN IF FLEXCAL HAS BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

26) GENERAL PROVISIONS:

a) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

b) Dispute Resolution and Arbitration; Class Action Waiver.

Please Read This Provision Carefully. It Affects Your Legal Rights.

This provision facilitates the prompt and efficient resolution of any dispute that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

This provision provides that all disputes between you and us will be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney’s fees). YOU AND FLEXCAL AGREE THAT ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

i) Pre-Arbitration Claim Resolution

For all disputes, you must first give us an opportunity to cure or resolve the dispute which is first done by emailing us at support@FlexCal.me the following information: (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration.

ii) Arbitration Procedures

If this provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration will be commenced as an individual arbitration, and will in no event be commenced as a class arbitration. This provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because these Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. 

iii) Class Action Waiver

Except as otherwise provided in this provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and FlexCal specifically agree to do so following initiation of the arbitration.

c) You understand and agree that by accepting this provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. If any clause within this provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable and the dispute will be decided by a court. This provision will survive the termination of your account with us or our affiliates and your discontinued use of this Website. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this provision if a dispute between us arises.

d) ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by You. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.

e) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such conditions, the remainder of this Agreement shall continue in full force.

f) NO WAIVER: In the event that We fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.

g) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.

h) NO AGENCY, PARTNERSHIP OR JOINT VENTURE: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.

i) FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

j) ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including e-mail or fax. For any questions or concerns, please email Us at the following address: support@FlexCal.me.

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