Community Rules & Etiquette and Privacy Guidelines
- RESPONSIBLE USE OF THE SERVICES
1.1 Prohibitions. The Member shall not do any of the following: (a) facilitate access to the Services to any person that is not an Authorized User; (b) transfer or share Access Keys with any person that is not an Authorized User; (c) distribute, transmit or share any part or whole of the Services to any person that is not an Authorized User; (d) decompile, disassemble or undertake any form of reengineering or reverse-engineering process on any part or whole of the Services or provide assistance to any effort of a third party to do so; (e) remove, cover, or otherwise alter any name or other identifying marks on the Services; (f) reproduce any part or whole of the Services; or (g) authorize, approve, assist or encourage any violations of this Agreement.
1.2 Non-Recruitment of FLX Service Providers. During the Restricted Period (as defined below), the Member will not, directly or indirectly, solicit, recruit, or induce any FLX Service Provider or another member to terminate his/her relationship with FLX or work for any other person or entity. “Restricted Period” means the Term of FLX Service Provider’s engagement with the Member and one year immediately following the end of such Term; provided, however, that in the event FLX enforces this Agreement through a court order, the Restricted Period shall continue until the later of (i) one year after such Term ends and (ii) one year after the effective date of the order enforcing this Agreement.
1.3. User Compliance. Member shall ensure that Authorized Users observe and comply with all obligations and restrictions under this Agreement, and Member hereby assumes full responsibility and liability for, and fully indemnifies FLX for the use of the Services (and any Materials therein), and for any breach of this Agreement, by any Authorized User or any employee, contractor, or affiliate of Member.
2.1. Confidential Information. Member acknowledges that all information relating to the Services (or any part therein) that Member obtains pursuant to this Agreement is of a confidential nature and may contain trade secrets exclusively owned by FLX (the “Confidential Information”). Confidential Information includes without limitation all Materials, Authorized Improvements, Unauthorized Improvements, Feedback (as such term is defined in Section 8), and any software, documents, communications, logic, design, structure, algorithms, assumptions, calculations, formulas, processes, technical documentation, ideas, know-how, discoveries, inventions (whether or not patentable), techniques, mask works, industrial designs, and research and development information connected to or related to the Services which Member receives from FLX (whether via the Sites or otherwise).
Notwithstanding the foregoing, “Confidential Information” does not include information that is: (i) already lawfully known by Member prior to receiving such information from FLX; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act of Member’s own; (iii) subsequently disclosed on a non-confidential basis by a third party not having a confidential relationship with FLX and such third party rightfully acquired such information; (iv) independently developed by Member without reference to the Services or Materials; or (v) communicated to a third party with the express written consent of FLX. Member may disclose Confidential Information if required by law provided that Member give prompt advance written notice of such requirement to FLX. Reasonable efforts must be made to provide this notice in sufficient time to allow FLX to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Member will cooperate in such efforts, at FLX’s expense.
2.2. Non-Disclosure. Member shall not disclose, during the term of this Agreement or for a period of two (2) years thereafter, any Confidential Information to any person, nor will Member use or exploit, directly or indirectly, the Confidential Information for any purpose other than for the purposes provided under this Agreement.
The Member hereby grants FLX such Member’s consent to reference the Member by name in FLX’s promotional materials, including press releases; provided that FLX may not share any Member specific results or other Member Data (as defined below) without the approval of the relevant Member. In the event of such reference, any Member logo or trademark usage will be in accordance with Member’s trademark and logo usage guidelines as provided to FLX. Member may provide confidential references at its sole discretion if requested by FLX.
4.1. Mitigation. FLX reserves the right to take such steps as it deems necessary to restrain any unauthorized activity by the Member, which steps may include, without limitation, Subscription, License and Services suspension and termination, and legal action.
4.2. Equitable Relief. Member agrees that breach of this Agreement may cause FLX irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, FLX will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate) against such breach or threatened breach, without proving actual damage or posting a bond or other security. With respect to any enforcement of and/or breaches as set out in this Section 10.2 above for injunctive relief by court, the parties hereto agree that the state and federal judicial district in the state of Delaware shall have exclusive and sole jurisdiction over the subject matter and the parties.
4.3. Infringement by Third Parties. Member shall promptly notify FLX of any infringement or suspected infringement of the intellectual property rights related to the Services or any parts thereof, shall not make any admissions in respect of them, and shall give FLX all such information and assistance, other than financial assistance, as FLX may reasonably require to enable such proceedings to be taken and prosecuted against the infringer or suspected infringer as FLX may in its discretion deem necessary or desirable.
4.4. Conduct and Participation. FLX shall have the right of sole conduct of all actions and proceedings relating to the Services and Materials, including infringement claims, interferences, and conflicts, but FLX shall be under no obligation to exercise this right.
- RELATIONSHIP BETWEEN PARTIES
The Parties to this Agreement acknowledge and agree that each is an independent party and, as such, neither Party may represent itself as an employee, agent, or representative of the other; nor may it incur any obligations on behalf of the other Party, which is not specifically authorized in this Agreement. This Agreement does not create an association, joint venture, or partnership between the Parties, nor does it impose any partnership liability upon either Party.
- THIRD PARTY CONTRIBUTOR DATA
Without limiting and notwithstanding any other provision of this Agreement:
- a) Member hereby acknowledges and agrees that certain data contained or used in the Materials (which includes the Models) (“Third Party Data”) may be provided by third party contributors (“Third Party Contributors”). FLX does not verify the accuracy and completeness of Third-Party Data before using such Third-Party Data in the Materials. As a result, FLX does not provide any guarantee as to the accuracy and completeness of Materials and disclaims any liability connected to any errors, misrepresentations, inaccuracies, or miscalculations connected thereto.
- b) Member covenants for the benefit of FLX and for the benefit of each Third Party Contributor, that Member shall not make any claim, pursue any action or make any demand against any Third Party Contributor in respect of this Agreement or related to the Third Party Data, irrespective of the cause of such claim, action or demand, including but not limited to breach of contract, tort (including negligence), breach of statutory duty or any other legal theory and, for greater certainty, no Third Party Contributor shall be liable for any loss or damage suffered by Member as a result of any act or failure to act (including willful misconduct or negligence) by such Third Party Contributor, including any direct, indirect, special, incidental or consequential loss, damage, injury, cost or expense, loss of profits or revenue, failure to realize expected profits, revenue or savings or other commercial or economic loss, damage or injury, even if advised of the possibility of same.
8.1. Indemnification by FLX. Subject to the terms of this Agreement, FLX will defend Member against any third party claim that the Services infringe a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (“Claim Against Member”), and will indemnify Member for the resulting costs and damages finally awarded against Member to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, FLX will have no liability to Member under this Section 14.1 for any Claim Against Member that arises out of any unauthorized use of the Services by Member. In the event of a Claim Against Member pursuant to this Section 14.1, FLX may (at FLX’s option and expense): (i) obtain for Member the right to continue using the Services; (ii) modify the Services to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by FLX in its sole discretion), terminate this Agreement and refund Member in accordance with Section 6.3(c).
8.2. Indemnification by Member. Member hereby agrees to indemnify, defend, and hold harmless FLX and any of its principals, employees, affiliates and agents, including FLX Service Providers, from and against any and all losses, costs, expenses, claims, or damages arising out of any claim, suit, action, or judgment brought against FLX by a third party as a result of Member’s (or Authorized User’s) use of the Services, any acts taken by Member (or Authorized User) beyond the authority granted under this Agreement, or as a result of any breach by Member (or Authorized User) of any covenant, warranty or representation made under this Agreement.
8.3. Indemnification Process. As a condition of receiving an indemnification under this Agreement, the Party seeking indemnification hereunder (the “Indemnified Party”) will provide the other Party (the “Indemnifying Party”) with (a) prompt written notice of the claim; (b) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission if the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim, such permission not to be unreasonably withheld, delayed or conditioned); and (c) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
8.4. Exclusive Remedy. This Section 14 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other Party for any type of claim under this Section 14. Notwithstanding the foregoing, each Party will have the right to terminate this Agreement pursuant to Section 6, to the extent the event giving rise to indemnification constitutes a material breach of this Agreement.
EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN SECTION 5.2, FLX MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, ACCURACY OF MATERIALS, OR THE NON-EXISTENCE OF ERRORS. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY. FLX RESERVES THE RIGHT, IN ITS SOLE DISCRETION, WITHOUT ANY PENALTY OR OBLIGATION AND WITHOUT ANY NOTICE REQUIREMENT, TO DISCONTINUE, CHANGE, IMPROVE, OR CORRECT THE INFORMATION, ALGORITHMS, FORMULAS, CALCULATIONS, DESIGNS, AND DESCRIPTIONS PROVIDED IN THE MATERIALS, AND TO SUSPEND OR DENY ACCESS TO MEMBER FOR SCHEDULED OR UNSCHEDULED MAINTENANCE, UPGRADES, IMPROVEMENTS OR CORRECTIONS. SERVICES ARE PUBLISHED AS OF ITS DATE ONLY, AND FLX HAS NO RESPONSIBILITY TO UPDATE OR AMEND ANY SUCH INFORMATION (WHETHER OR NOT MATERIAL EVENTS OCCUR RELATING TO MARKET CHANGES, FINANCIAL UPDATES, NEWS EVENTS, OR ANY OTHER EVENT WHICH MAY IMPACT THE MATERIALS AND THE INFORMATION FOUND THEREIN).
FLX DOES NOT PROVIDE FINANCIAL OR INVESTMENT ADVICE, AND THE MATERIALS SHOULD NOT BE RELIED UPON AS SUCH. FLX IS NOT A LICENSED FINANCIAL OR INVESTMENT ADVISOR. ALL SERVICES SHOULD BE USED WITH THE SUPERVISION OF A LICENSED FINANCIAL OR INVESTMENT PROFESSIONAL THAT IS ABLE TO UNDERSTAND THE RISKS INVOLVED IN USING THE SERVICES TO MAKE INVESTMENT DECISIONS.
THE MATERIALS MAY CONTAIN THIRD PARTY WEBSITE LINKS (THE “LINKS”). FLX PROVIDES THE LINKS FOR CONVENIENCE ONLY AND MAKES NO REPRESENTATIONS WHATSOEVER ABOUT ANY SITE WHOSE SERVICES MAY BE ACCESSED THROUGH FLX OR WHOSE SERVICES MAY BE DESCRIBED OR OFFERED THROUGH THE SERVICES. THE USE OF LINKS DOES NOT MEAN THAT FLX ENDORSES OR ACCEPTS ANY RESPONSIBILITY FOR THE CONTENT, OR USE, OF SUCH THIRD-PARTY WEBSITE.
MEMBER EXPRESSLY ACKNOWLEDGES THAT FLX IS PROVIDING THE SERVICES PURSUANT TO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THIS AGREEMENT. MEMBER EXPRESSLY AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN SHALL SURVIVE, AND CONTINUE TO APPLY IN THE CASE OF A FUNDAMENTAL BREACH OR BREACHES OF, THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY OR THE TERMINATION OR SUSPENSION BY FLX OF MEMBER’S USE OF, OR ACCESS TO, THE SERVICES.
- LIABILITY LIMITATION
THE MAXIMUM AGGREGATE LIABILITY OF FLX UNDER THIS AGREEMENT HOWSOEVER ARISING, SHALL BE LIMITED TO THE MEMBERSHIP DUES PROVIDED IN THE SERVICE SUPPLEMENT (EXCLUDING ANY RENEWALS OR APPLICABLE TAXES). NO ACTION OR PROCEEDING RELATING TO THIS AGREEMENT MAY BE COMMENCED BY MEMBER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.
IN NO EVENT SHALL FLX BE LIABLE TO MEMBER OR TO ANY THIRD PARTY (WHICH INCLUDES AUTHORIZED USERS) FOR: (1) ANY AMOUNTS REPRESENTING LOSS OF PROFITS OR REVENUES HOWSOEVER ARISING; (2) SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SAME; (3) DAMAGES OR EXPENSES ARISING FROM CHANGES IN OPERATING CHARACTERISTICS OF THE SERVICES WHICH ARE MADE DURING THE TERM OF THIS AGREEMENT; (4) DAMAGES ARISING FROM THE USE OF THE SERVICES WITH OTHER SOFTWARE; (5) ANY LOSS OR DAMAGES ARISING FROM OR OCCASIONED BY ANYTHING DISCLAIMED IN THIS AGREEMENT. FURTHER TO SECTION 14, MEMBER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS FLX IN RESPECT OF ALL CLAIMS OR DAMAGES EXCLUDED HEREUNDER.
11.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its rules governing conflicts of law.
11.2. Further Assurances. The Parties to this Agreement shall make good faith efforts to execute, acknowledge, and deliver all such further assurances and documents and do all such other acts as may be necessary or appropriate in order to carry out the intent and purposes of this Agreement.
11.3. Entire Agreement. This Agreement, which includes the Service Supplement (as may be renewed from time to time), constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all previous writings and understandings. In the event of a conflict between terms of this Agreement and the Service Supplement, the terms of this Agreement shall prevail to the extent of such conflict, except as applied to payment terms, where Service Supplement shall prevail to the extent of such conflict.
11.4. Member Affiliates. The Member’s affiliates are not a party to this Agreement and therefore do not receive any rights contained herein.
11.5. Severability. If any provision of this Agreement is or becomes fully or partially invalid or unenforceable for any reason whatsoever or should be adjudged to violate any applicable law, this Agreement is to be considered divisible as to such provision and such provision, to the extent that it is invalid or unenforceable, is to be deemed deleted from this Agreement, and the remainder of this Agreement shall be valid and binding as if such provision were not included herein.
11.6. Non-Waiver. No waiver of any violation or non-performance of this Agreement shall be deemed to be a waiver of any subsequent violation or non-performance.
11.7. Language. Whenever a word is used in the singular in this Agreement, it shall also mean the plural, and vice versa, unless otherwise noted. The headings in this Agreement are inserted for convenience of reference only and shall not affect the construction thereof.
11.8. Notice. All notices, reports, or other communication that the Parties give each other in connection with this Agreement shall be in writing, and shall be delivered by hand, e-mail, or registered mail to the recipient at the Party’s address or e-mail as set forth on the signature page hereto or such other address as either party may designate for itself in writing. Proof of delivery in a prescribed manner will constitute proof of receipt.
11.9. Construction. Interpretation of this Agreement shall not be construed against either Party.
11.10. Assignment. FLX may assign its rights, obligations, and duties under this Agreement upon a notice to Member. Member may assign its rights, obligations, and duties under this Agreement only with prior written approval from FLX, which approval may be unreasonably withheld.
11.11. Enurement. This Agreement shall enure to the benefit of each Parties’ permitted assigns.
11.12. Amendments. This Agreement may be amended or modified from time to time by a written document signed by FLX and Member, or such Party’s permitted assigns.
11.13. Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
11.14. Arbitration. In the event of any disagreement or dispute arising from or related to this Agreement or any transactions contemplated hereby (a “Dispute”), the parties agree to cooperate in good faith to resolve the Dispute. If the parties are unable to resolve the Dispute within sixty (60) days, either party may submit such Dispute to arbitration before the American Arbitration Association (“AAA”). Whether a Dispute is subject to arbitration under this Agreement shall itself be covered by this provision. Except as provided in this Agreement, such arbitration shall be in accordance with the Commercial Arbitration Rules of the AAA currently in effect. Such arbitration shall take place in Somerville, New Jersey. The parties intentionally do not select the International Center for Dispute Resolution of the AAA.
- a) The party requesting arbitration shall notify the other party in writing of its intention to arbitrate. Within fifteen (15) Business Days after such Notice, the party seeking arbitration shall submit the dispute in accordance with AAA rules. Within fifteen (15) business days after the commencement of arbitration pursuant to this section, each party shall select one person to act as arbitrator, and the two selected arbitrators shall select a third arbitrator within ten (10) business days of their appointment. If the two arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within such time, the third arbitrator shall be selected by the AAA. Notwithstanding AAA Rules, all arbitrators selected shall be accountants, attorneys, or securities industry professionals.
- b) The arbitrators shall apply the law of the State of Delaware applicable to contracts made and to be performed wholly in that state (without giving effect to the principles thereof relating to conflicts of law).
c)The parties agree that the award of the arbitrators hereunder shall be final and binding on the parties, and judgment upon the award rendered may be entered in any court having jurisdiction. The parties hereby submit themselves and their representatives to the jurisdiction of any such court for the purpose of such arbitration and the entering of such judgment. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this section or to enforce any decision of the arbitrators. Except as provided in the previous sentence, the parties agree that no party shall initiate or prosecute any lawsuit or administrative action in any way related to any Dispute other than before arbitrators as provided for in this section.
d)The parties understand and agree that: (i) they are waiving their right to seek remedies in court, including the right to jury trial, (ii) pre-arbitration discovery is generally more limited than and different from court proceedings; and (iii) the award of the arbitrators is not required to include factual findings or legal reasoning and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
- e) The parties agree that in connection with any arbitration commenced pursuant to this Section, all AAA arbitration fees shall be borne by the party against whom such award is made. Otherwise, the parties agree that they shall each be responsible for their respective fees and expenses in connection with such arbitration, including without limitation, attorneys’ fees.
- f) Entering into this Agreement constitutes the consent to submit to personal jurisdiction of the courts of the state of Delaware, to interpret and enforce any terms of the arbitration provisions contained in this Agreement. Judgment on any arbitration award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and an order of enforcement as the case may be.
g)The exclusive language to be used by the parties and the arbitrators in the arbitration proceedings shall be English. Any party wishing an interpreter shall make all arrangements directly with the interpreter and shall assume all costs of service.
FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT AS STATED HEREIN.