General Terms and Conditions (US) - FLIP GmbH

Preamble

Flip GmbH, Rotebühlstraße 50, 70178 Stuttgart, Germany (the “Provider”) operates the employee platform “Flip” (the “Software Service” or “Platform”). The Software Service is made available exclusively to business customers, namely corporations, partnerships, sole proprietorships acting in a commercial or professional capacity, governmental bodies, public-law entities and other organizations, in each case acquiring the Software Service for purposes within their trade, business, profession or governmental function, and not to consumers acquiring for personal, family or household purposes. By accepting these Terms the Customer represents that it is such a business customer. Customers use the Platform for internal communication and collaboration, in particular with employees who do not work at a desk (frontline employees). The Platform may be extended by additional Modules (e.g. Frontline Identity, Flip Fusion), for which Special Terms may apply in addition.

1. Definitions

“Authorized Users” / “Users” are the natural persons designated by the Customer pursuant to Section 4.

“DPA” means the single, consolidated data processing agreement including its annexes (for Features) and the applicable EU, UK, Swiss and U.S. State Privacy Laws modules, in the version published at the time the contract is concluded, available online at https://www.getflip.com/legal/dpa-us/ . Under the U.S. State Privacy Laws module, with respect to Personal Data governed by U.S. State Privacy Laws, the Customer is the business/controller and the Provider the service provider/processor.

“Order Form” means a quotation or order document or an online order specifying the software service to be provided under this Agreement, concluded between the Customer and either the Provider or a Reseller or one of their affiliates, including all supplements and amendments thereto.

“Documentation” means the Provider’s then-current, generally made available user and system documentation.

“Customer” means, where an individual accepts this Agreement on behalf of a company or other legal entity, that company or other legal entity on whose behalf that individual accepts this Agreement, and the affiliates of that company or legal entity (for as long as they remain affiliates) that have executed Order Forms.

“Customer Content” or “Customer Data” means all data, content and materials that the Customer or Authorized Users provide or have generated in the course of using the Software Service.

“Modules” are separately bookable service components pursuant to the Service Description or the applicable Special Terms.

“Usage Data” means technical information arising from the use of the services (e.g. logs, telemetry and aggregated usage metrics) that identifies neither the Customer nor any natural person; identifying Customer Content is excluded.

“Reseller” means a third party engaged and authorized by the Provider that resells services to the Customer.

“Service Description” means the document (if available, accessible online at https://www.getflip.com/legal/) containing a description of the Software Service and any additional terms applicable to a particular Software Service. If no Service Description is available on the Provider’s website for the offering to be purchased, the Documentation shall be deemed the “Service Description” for the purposes of this Agreement.

“Service” or “Software Service” means the products and services ordered by the Customer via an Order Form or an online purchasing portal, or made available to the Customer online by the Provider free of charge (as applicable) or as part of a free trial.

“SLA” means the Service Level Agreement on the Provider’s website (accessible online at https://www.getflip.com/legal/).

2. Subject Matter, Provider Services and Responsibilities

2.1 The subject matter of the contract is the Provider’s services governed by this Section 2; the Provider renders them in accordance with these General Terms and Conditions (the “Terms” or “Base Terms”), the applicable Order Form and the Service Description. The Provider will provide the Software Service in compliance with the laws and governmental regulations that apply generally to the Provider’s provision of software services to its customers (i.e. without regard to the Customer’s particular use of the Software Services), and subject to use by the Customer and the Users in accordance with these Terms, the applicable Service Description and the applicable Order Form.

2.2 The contract is formed as soon as the Customer accepts the Order Form in writing within the acceptance period specified therein. For the purposes of these Terms, “in writing” includes email and other electronic records capable of being reproduced in readable form, and each party agrees that such records satisfy any writing requirement under these Terms. If the parties agree on a later commencement date, the contract is formed no earlier than that date. If an affiliate of the Customer enters into its own Order Form referencing these Terms, that affiliate becomes a party to the contract thereby created upon its effectiveness; the rights and obligations of these Terms apply to it as if it were an original party. No consent under Section 18.2 is required for this; Section 18.2 remains unaffected for the transfer of existing contracts.

2.3 Conflicting, differing or supplementary terms of the Customer become part of the contract only if the Provider has expressly agreed to their application in writing. Accepting orders, rendering services or referring to Customer documents does not constitute such agreement. Purchase terms or purchase orders of the Customer have administrative significance only.

2.4 If the Customer books additional Modules or features during the term, this is done by way of a separate Order Form or amendment; the Base Terms continue to apply and are supplemented or modified only to the extent expressly provided by the Special Terms of the relevant Module.

2.5 The Provider makes the Software Service available to the Customer and the Authorized Users in its then-current version, within the agreed scope, as software-as-a-service via the internet; there is no entitlement to the provision or retention of any particular earlier version. Use requires the Customer’s initial setup and onboarding by the Provider with the Customer’s cooperation (Section 6); details, schedule and any one-time fees follow from the Order Form. The functional scope and characteristics of the Software Service are determined exclusively by the Order Form (including the service packages and Modules agreed therein) together with the Service Description; public statements, advertising or product announcements do not create any agreed characteristic or warranty. The point of delivery is the router exit of the data center used by the Provider. Provision of the Flip Platform comprises access to the Flip Web App via the then-current versions of common web browsers as well as via the Flip Android App and the native iOS app, operation of the Platform, and hosting in a data center in Europe secured in accordance with the current state of the art. The Platform is provided for the number of user accounts agreed in the Order Form. The Provider performs daily data backups and handles release management; details, in particular backup intervals, retention periods and recovery times, follow from the Service Description and the SLA.

2.6 The Provider renders support services in accordance with the Order Form and the SLA, where applicable by way of remote diagnostics. The Provider will use commercially reasonable efforts to make the Software Service available in accordance with the SLA, except for (i) software services for which no SLA exists, (ii) planned downtime notified electronically in advance by the Provider, and (iii) any unavailability caused by circumstances beyond the Provider’s reasonable control, e.g. force majeure, governmental measures, floods, fire, earthquakes, civil unrest, acts of terrorism, strikes or other labor problems (other than those involving Provider employees), failures or delays of internet service providers, of third-party applications, or denial-of-service attacks.

2.7 Consulting, implementation, training and other services (“Professional Services”) are rendered by the Provider in accordance with the Order Form or separate statements of work (SOW) on a time-and-materials basis, unless a specific deliverable or result is expressly agreed. All rights in work results created in the course thereof belong to the Provider; the Customer receives a non-exclusive right to use them for internal purposes for the term of the contract, unless otherwise agreed in the SOW. The Provider remains free to render comparable services for third parties.

2.8 Subject to express agreement in the Order Form, the Provider does not owe individual extensions or customizations of the Software Service, compliance with customer-specific or industry-specific regulatory requirements, or ongoing user administration including the manual resetting of passwords.

2.9 The Provider may further develop, modify and update the Software Service (e.g. by new versions, updates, changed user interfaces), provided that the core functionalities pursuant to the Service Description are not materially adversely affected thereby. The provisions of this contract apply accordingly to new versions, upgrades and updates. The Customer has no entitlement to the provision of new, separately marketed Modules. If the Provider discontinues a material function of the Software Service without replacement, it will give at least six (6) months’ prior notice in writing; if the discontinuation materially impairs the core functionalities pursuant to the Service Description, the Customer may terminate the affected part of the services effective as of the date the discontinuation takes effect. Changes required to comply with legal requirements or to remedy a material security risk remain unaffected.

2.10 The Provider may render services in whole or in part through subcontractors; it remains responsible for performance of the contract.

2.11 If the Provider makes features available free of charge for testing and expressly designates them as beta, pilot, preview, early access or a comparable designation, these do not form part of the services owed. Neither the SLA nor the availability and functionality commitments of this contract apply to them; the Provider may change or discontinue them at any time and is under no obligation to make them generally available. THE PROVIDER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO BETA AND PILOT FEATURES, WHICH ARE PROVIDED “AS IS”, AND THE PROVIDER’S LIABILITY IN RESPECT OF THEM IS LIMITED TO WILLFUL MISCONDUCT AND GROSS NEGLIGENCE; Section 15.1 remains unaffected. In all other respects the provisions of this contract, in particular those on confidentiality, information security and data protection, also apply to beta and pilot features. The use of sub-processors within the meaning of data protection law is governed exclusively by the DPA.

3. AI Features

3.1 The Software Service may contain features based on artificial intelligence (“AI”) (e.g. assistance, search, translation and generation features; the “AI Features”). Which AI Features are made available follows from the Service Description or the Special Terms of the relevant Module. Where provided for therein, the Customer may enable and disable AI Features at tenant level.

3.2 AI Features generate output on a probabilistic basis. The parties agree that AI-generated output may be factually incorrect, incomplete or unsuitable, and requires review by the Customer before any external-facing use or use for decisions having legal effect. The Provider owes the provision of the AI Feature in accordance with the Service Description, and does not warrant the substantive accuracy of any individual output.

3.3 The Customer shall not use AI Features (i) to make, or as a substantially determinative input into, any automated decision concerning an individual employee, worker or applicant, including hiring, promotion, compensation, discipline, evaluation, scheduling or termination; (ii) for the automated assessment, monitoring or scoring of employees or workers; or (iii) for biometric identification, emotion inference or inference of protected characteristics. The Customer shall ensure meaningful human review of AI output before any use having external effect or legal or employment consequences. The Customer is solely responsible for compliance with all laws applicable to it in connection with its use of AI Features, including anti-discrimination, employment, labor, employee-representation, privacy and automated-decision-making laws and any applicable notice, consent, disclosure, bias-audit or impact-assessment obligations. The Provider supports the Customer through product-side labeling and information but makes no representation that the Customer’s intended use complies with the laws applicable to the Customer, and provides no legal advice.

3.4 The Provider does not use the Customer’s personal data to train, fine-tune or improve AI models; details, including the use of anonymized data, are governed by the DPA and its Module annexes.

4. Authorized Users, User Accounts

4.1 Up to the number of licenses agreed in the Order Form, the Customer may at its discretion designate as Authorized Users natural persons who are employees of the Customer. The Customer may further permit its affiliates and their personnel, as well as persons otherwise specially connected to the Customer (e.g. applicants, alumni, temporary agency workers and engaged external service providers), to use the Software Service in the same environment by way of sublicensing within the contractually agreed scope, provided that it has notified the Provider thereof and no further setup or onboarding by the Provider is required. The Customer is responsible for compliance with the contract by affiliates as for its own conduct. Should additional setup or onboarding be required, the Provider is entitled to charge additional fees in accordance with its then-current price list. Designating employees or contractors of the Provider’s competitors is not permitted. Each user account may be used by one authorized person only.

4.2 The Customer (i) is responsible for compliance with the contract by the Authorized Users and for all actions taken through their accounts, to the extent these are not attributable to a breach of duty by the Provider; (ii) obligates the Authorized Users to use the Software Service in accordance with the contract; and (iii) informs the Provider without undue delay of any unauthorized use of accounts or credentials. Credentials must be kept confidential. The assignment, reassignment and withdrawal of user accounts is the Customer’s responsibility via the administration console.

4.3 Only the Customer may claim performance under the contract. This Agreement is entered into for the sole benefit of the Provider and the Customer. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity, including any Authorized User, any legal or equitable right, benefit or remedy of any nature whatsoever, and no such person or entity shall be deemed a third-party beneficiary of this Agreement. The parties agree that the creation of user accounts and the provision of content or features to Authorized Users neither creates any contract for the benefit of third parties nor is intended to create any protective effect in favor of Authorized Users or other third parties. Rights that any individual may have under applicable statute independently of this Agreement remain unaffected.

5. Rights of Use, Use Restrictions

5.1 For the term of the contract the Customer receives the non-exclusive, non-transferable and (subject to Section 4) non-sublicensable right to use the Software Service for its own internal business purposes in accordance with the contract and the Documentation. No physical copy of the software is provided. Initial provision of the Software Service is subject to receipt of the first fee due under the Order Form; in all other respects the Provider’s rights under Section 8 apply in the event of payment default. The Customer may use the Software Service worldwide, except from countries in which such use is impermissible under applicable import, export control or sanctions law (see Section 18.4).

5.2 The Customer is prohibited from (i) making the Software Service available to third parties outside the contractually contemplated group of users, whether for a fee or free of charge (e.g. by way of a service bureau); (ii) copying, modifying, reverse engineering, decompiling or disassembling the software, or otherwise attempting to derive the source code, in whole or in part, by any means; (iii) using the Software Service to build a competing product or for benchmarking for the benefit of competitors; (iv) circumventing security mechanisms, performing vulnerability scans without the Provider’s prior consent, or impairing the operation of the Software Service; or (v) uploading unlawful content or using the Software Service unlawfully.

5.3 Access to the Software Service is personal to each user. Use of one access by several persons and generic or shared log-ins are impermissible where this circumvents the agreed number of user accounts. The same applies to indirect access to the Software Service or its content via upstream portals, interfaces or automations for the benefit of persons who are not Authorized Users. Technical service accounts for the automation of processes initiated by Authorized Users remain permissible, as do kiosk, bulletin-board and display devices to the extent the Order Form provides for such forms of use. Use by affiliates of the Customer remains unaffected in accordance with the Order Form and is not restricted by this Section.

5.4 The Software Service may contain open-source components; the respective open-source license terms, which the Provider identifies on request or in the Documentation, apply to these in addition.

5.5 If the Customer makes a customer-specific (branded) app available via an app store in accordance with the Order Form, the Customer is responsible for compliance with the applicable app store terms, unless the Provider has assumed publication as a managed service.

6. Customer Cooperation Duties

6.1 The Customer supports the Provider to the extent necessary for the performance of the services. In particular, the Customer will (i) provide required information, data, interfaces and points of contact in good time; (ii) designate an email distribution list for maintenance announcements and emergency communications; (iii) report defects and disruptions without undue delay and in a comprehensible manner; (iv) create the technical prerequisites necessary for use within its area of responsibility (system requirements pursuant to the Service Description) and protect its IT systems against malware in accordance with the state of the art; and (v) not unreasonably delay required approvals. To the extent and for as long as the Customer fails to render required cooperation, the Provider is released from the performance obligations dependent thereon; agreed deadlines are extended appropriately.

6.2 The Customer is responsible for ensuring that its use of the Software Service, including the processing of Customer Content, complies with the law applicable to it (including data protection law and any employee-representation or co-determination requirements). The Provider does not provide legal advice; template texts provided by the Provider as a courtesy (e.g. terms of use, privacy notices for users) are non-binding examples that the Customer must review and adapt on its own responsibility.

7. Fees

7.1 The Customer pays the fees agreed in the Order Form. The fee for the Software Service is determined in particular by the agreed user package (maximum number of user accounts) and the Modules booked and is, unless otherwise agreed, invoiced annually in advance. If more than two weeks elapse between conclusion of the contract and completion of onboarding, the fee obligation for the Software Service is waived for the period until completion of onboarding, to the extent the Provider is responsible for the delay. One-time fees (e.g. setup) become due upon conclusion of the contract. Professional Services are billed on a time-and-materials basis at the rates agreed in the Order Form or at the Provider’s then-current rates.

7.2 The user package is firmly agreed for the agreed term; the payment obligation exists irrespective of actual use. A change to a smaller user package during the agreed contract term and any pro-rata refund are excluded.

If the number of user accounts created exceeds the agreed user package at any time, the Provider will notify the Customer thereof in writing. The Customer may reduce the number of user accounts within 30 days after receipt of the notice. In the notice the Provider expressly draws attention to the deadline and to the fact that a failure to reduce is deemed consent to an increase of the user package. Otherwise the user package increases upon expiry of the deadline by the number of excess users. The price per user account and month agreed in the Order Form applies to excess users. The additional fee is calculated pro rata from the month of the increase until the end of the current contract year and is invoiced with the next annual invoice. From the following contract year onward the increased user package forms the basis of the fee.

7.3 Unless otherwise agreed, invoices are due for payment within 30 days of receipt without deduction. All prices are exclusive of applicable sales, use, value added and similar transaction taxes, which are payable by the Customer; the Provider is responsible for taxes on its own income. If the Customer is required to withhold any tax, it will gross up the payment so that the Provider receives the full amount invoiced. The Provider issues invoices electronically.

7.4 The Customer may set off or withhold payment only with undisputed counterclaims or counterclaims finally adjudicated by a court of competent jurisdiction. A right of the Customer to withhold payment on account of counterclaims arising from the same contractual relationship remains unaffected.

7.5 Adjustments of the recurring fee are governed exclusively by the provision made in the Order Form.

8. Temporary Suspension

The Provider may temporarily restrict or suspend the access of the Customer or of individual Authorized Users to the extent necessary to avert specific risks, in particular if (i) the Customer breaches material use restrictions under Section 5.2; (ii) the Customer is more than 30 days in default with payments due despite a reminder and the setting of a grace period; (iii) mandatory legal provisions so require; or (iv) the use poses a risk to the security, availability or integrity of the Software Service or of third parties. The Provider will, where possible and permissible, give prior notice of the suspension in writing, will choose the least intrusive suitable measure, and will lift the suspension without undue delay once its cause has ceased. The Customer’s payment obligation remains unaffected by a justified suspension.

9. Customer Content

9.1 The Customer grants the Provider the non-exclusive, worldwide rights in the Customer Content, limited to the term of the contract, that are necessary for the performance of the contractual services (in particular storage, reproduction, technical processing, display and transmission within the Software Service, including by the subcontractors engaged, to the extent necessary for the performance of the services).

9.2 The Customer is responsible for the Customer Content and represents and warrants that it holds the necessary rights and that the Customer Content infringes no third-party rights and violates no applicable law.

9.3 If the Provider is notified of, or a claim is asserted regarding, a possible infringement by Customer Content, the Provider may temporarily block the affected Customer Content to the extent necessary to avert harm and reasonable for the Customer; the Provider will inform the Customer without undue delay and give it an opportunity to respond. If the Customer does not demonstrate lawfulness within a reasonable period, the Provider’s further rights (including termination for material breach under Section 16.1) remain unaffected.

9.4 All rights in the Software Service, the Documentation, the Usage Data and in the Provider’s templates, formats and dashboards remain with the Provider or its licensors. If the Customer submits feedback or suggestions for improvement to the Provider, the Provider may use these free of charge and without restriction. The Provider may use usage and performance data arising from the operation of the Software Service in aggregated and anonymized form that permits no inference as to the Customer, Authorized Users or Customer Content, in order to ensure operation, for error analysis, for capacity planning and for the improvement and further development of its services. Any use of Customer Content for these purposes or for training AI models occurs only to the extent separately agreed.

9.5 (a) The data storage provided by the Provider serves exclusively to support the functionality of the Software Service and may not be used as general cloud storage. (b) The Provider may manage the data storage and may technically limit it to the extent necessary to maintain system performance, to comply with applicable law or to give effect to the Customer's own policies. This will not reduce the storage capacity committed in the Service Description. The Provider does not inspect the contents of Customer Content; monitoring is limited to volume, operational and security metrics. (c) Where the Service Description sets out retention periods for particular categories of data, those periods apply; where the Service Description describes them as configurable, the Customer may set them itself within the limits provided. Otherwise, Customer Content is retained for the term of the contract. (d) Any deletion of Customer Content by the Provider beyond paragraph (c) occurs only after prior notice in writing and a reasonable opportunity to export. Automated deletion upon expiry of the retention periods stated in the Service Description does not require separate notice. Customer Content for purposes of this Section 9.5 means the data and content submitted by the Customer or its Users; it does not include artifacts generated by the Software Service, the portability of which is governed by the applicable Service Description. Deletion following the end of the contract, the Customer's rights under Section 16.2 (export of Customer Content) and the provisions of the DPA remain unaffected.

10. Confidentiality

10.1 “Confidential Information” means all information that one party (the “Disclosing Party”) discloses to the other party (the “Recipient”) in connection with the contract and that is marked as confidential or is reasonably to be regarded as confidential given its nature and the circumstances of disclosure. The Provider’s Confidential Information includes in particular the contract terms as well as technical and performance-related information about the services; the Customer’s Confidential Information includes in particular the Customer Content.

10.2 The Recipient will (i) protect Confidential Information with the same degree of care it applies to its own confidential information, and in any event with no less than reasonable care; (ii) use it only to perform the contract; and (iii) make it accessible only to those employees, advisors and subcontractors who need to know it and who are subject to comparable confidentiality obligations. These obligations apply for the term of the contract and for three years thereafter; for information that constitutes a trade secret under applicable law they apply for as long as the information remains a trade secret.

10.3 Excluded is information that demonstrably (i) is or becomes publicly known without breach of duty; (ii) was already lawfully known to the Recipient; (iii) was lawfully obtained from third parties without any confidentiality obligation; or (iv) was independently developed. Disclosures required by law, regulation, subpoena or court or governmental order remain permissible; the Recipient will inform the Disclosing Party in advance to the extent legally permissible and will seek confidential treatment.

11. Data Protection

11.1 The parties comply with applicable data protection law. To the extent the Provider processes personal data on behalf of the Customer, the Provider’s single, consolidated Data Processing Agreement (which includes the applicable EU, UK, Swiss and U.S. State Privacy Laws modules and the applicable international transfer mechanisms) applies, available online at https://www.getflip.com/legal/dpa-us/ ; it is hereby incorporated into this contract by reference and prevails over this Section in matters of data protection.

11.2 The Customer is the controller and, where U.S. State Privacy Laws apply, the business in respect of the personal data processed by the Provider on its behalf, and ensures in particular that Authorized Users are informed and that a legal basis exists. The Customer’s acceptance of this contract and the execution of an Order Form by an affiliate is deemed execution of the transfer mechanisms and their annexes by the Customer.

11.3 The Provider will implement appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Customer Data, as further described in Section 12 and the DPA. These safeguards include, among other things, measures to prevent unauthorized access to or disclosure of Customer Data (other than by the Customer or the Users).

12. Information Security

The Provider implements the security measures described in the Trust Center at https://trust.getflip.com/ in the version published at the time the contract is concluded; subsequent changes to the Trust Center will not reduce the level of protection so undertaken. No guarantee or warranty in a legal sense is associated therewith. The Provider operates, among other things, an information security management system in accordance with ISO/IEC 27001 and takes technical and organizational measures in accordance with the state of the art pursuant to the DPA. The Provider informs the Customer without undue delay of security incidents that materially affect the Customer Content; data protection notification obligations are governed by the DPA.

13. Limited Warranty; Disclaimer of Warranties

13.1 The Provider warrants that, during the term of the contract, the Software Service will perform materially in accordance with the Service Description, and that the Provider will provide the Software Service in a professional and workmanlike manner using personnel of suitable skill and experience.

13.2 The Customer shall notify the Provider of any non-conformity without undue delay and in comprehensible form, stating the information useful for identifying the non-conformity; the incident procedure of the SLA remains unaffected. Upon such notice the Provider will, at its option and at no additional charge, correct the non-conformity or re-perform the affected part of the Software Service within a reasonable period. If the Provider fails to do so within a reasonable period, the Customer may terminate the affected part of the Software Service upon notice and the Provider will refund the fees prepaid for the terminated part attributable to the period after the effective date of termination. Any claim for relief in respect of unavailability is governed primarily by the service credit provisions of the SLA. THE REMEDIES SET OUT IN THIS SECTION 13.2 AND, WHERE APPLICABLE, THE SERVICE CREDITS UNDER THE SLA ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF THE LIMITED WARRANTY IN SECTION 13.1.

13.3 The limited warranty in Section 13.1 does not apply to, and impairments are not a breach of warranty where they are based on, (i) improper use or use contrary to the contract; (ii) environments that do not meet the system requirements; (iii) third-party software, third-party platforms or disruptions outside the Provider’s area of responsibility; (iv) modifications or interventions made by the Customer or third parties; or (v) beta and pilot features (Section 2.11), free-of-charge offerings and free trials.

13.4 EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET OUT IN SECTION 13.1, THE SOFTWARE SERVICE, THE PROFESSIONAL SERVICES, THE DOCUMENTATION, ANY AI FEATURES AND ANY OTHER MATERIALS OR DELIVERABLES PROVIDED BY THE PROVIDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND THE PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS AND TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY AND NON-INFRINGEMENT. THE PROVIDER DOES NOT WARRANT THAT THE SOFTWARE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT ALL ERRORS WILL BE CORRECTED, THAT ANY DATA WILL NOT BE LOST OR CORRUPTED, OR THAT THE SOFTWARE SERVICE OR ANY AI OUTPUT WILL MEET THE CUSTOMER’S REQUIREMENTS OR PRODUCE ANY PARTICULAR RESULT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE PROVIDER CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE CUSTOMER.

14. Indemnification

14.1 If a third party asserts against the Customer that the contractual use of the Software Service infringes its industrial property rights or copyrights in the United States, the European Union, the United Kingdom or Switzerland, the Provider will defend the Customer against such claims at its own expense and will indemnify the Customer against damages and costs finally awarded against it, or amounts in settlement approved by the Provider, provided that the Customer (i) informs the Provider without undue delay in writing, (ii) grants the Provider sole control of the defense and settlement negotiations, and (iii) provides reasonable assistance to the Provider. The Customer may participate in the defense at its own expense with counsel of its own choosing. The Provider will not enter into any settlement that imposes a non-indemnified obligation or an admission of wrongdoing on the Customer without the Customer’s prior consent. SECTION 14.1 STATES THE PROVIDER’S ENTIRE OBLIGATION AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

14.2 The Provider may at its option (i) procure for the Customer the right to continue use, (ii) modify or replace the Software Service such that no property rights are infringed and the material functions are retained, or, if neither is possible with reasonable effort, (iii) terminate the affected part of the services and refund fees prepaid on a pro-rata basis.

14.3 The obligations under Section 14.1 do not exist to the extent the infringement is based on (i) Customer Content, (ii) use contrary to the contract or the Documentation, (iii) combination with products or services not provided by the Provider, (iv) the Customer’s specifications, or (v) modifications not made or approved by the Provider.

14.4 The Customer will defend and indemnify the Provider against third-party claims based on an unlawful use of the Software Service by the Customer or the Authorized Users or on infringing Customer Content, including reasonable costs of legal defense; Section 14.1 (i)–(iii) applies accordingly for the benefit of the Customer. The indemnification obligation exists only to the extent the Customer is responsible for the infringement.

15. Limitation of Liability

15.1 Nothing in this Section 15 limits or excludes either party’s liability for (i) fraud or fraudulent misrepresentation; (ii) willful misconduct or gross negligence; (iii) death or bodily injury caused by that party’s negligence; (iv) the Customer’s obligation to pay fees due under the Order Form; (v) the Customer’s indemnification obligations under Section 14.4, it being understood that the Provider’s indemnification obligations under Section 14.1 are subject to the cap in Section 15.5; or (vi) any other liability that cannot be limited or excluded under applicable law.

15.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT ONLY TO SECTION 15.1, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, INDEMNITY, STATUTE OR ANY OTHER THEORY OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF PRODUCTION, LOSS OF GOODWILL OR REPUTATION, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR LOSS OF, CORRUPTION OF OR INABILITY TO ACCESS ANY DATA, IN EACH CASE WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15.3 The Provider’s liability for loss of data is in any event limited to the reasonable cost of restoration that would have been incurred had the Customer taken appropriate data backup measures. This does not derogate from the Provider’s own backup obligations under Section 2.5 and the SLA. The Customer remains responsible for exporting and retaining copies of Customer Content it requires outside the Software Service.

15.4 SUBJECT ONLY TO SECTION 15.1 AND 15.5, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT IS LIMITED TO ONE HUNDRED PERCENT (100%) OF THE NET FEES OWED BY THE CUSTOMER FOR THE SOFTWARE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. Where several events occur within one contract year, the aggregate liability for all such events is likewise limited to that amount.

15.5 FOR CLAIMS UNDER THE PROVIDER’S INDEMNIFICATION OBLIGATION IN SECTION 14.1 AND FOR CLAIMS ARISING FROM A BREACH OF THE PROVIDER’S DATA PROTECTION OBLIGATIONS UNDER SECTION 11 AND THE DPA, THE PROVIDER’S TOTAL AGGREGATE LIABILITY IS LIMITED TO TWO HUNDRED PERCENT (200%) OF THE NET FEES OWED BY THE CUSTOMER FOR THE SOFTWARE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. Claims arising from a series of connected events or from a continuing circumstance are treated as a single claim arising at the time of the first event.

15.6 The limitations and exclusions in this Section 15 apply for the benefit of the Provider and its affiliates and their respective officers, directors, employees, agents and subcontractors, apply to all claims however arising, whether in contract, tort, statute or otherwise, and apply irrespective of the number of claims or claimants.

15.7 Except for (i) claims for non-payment of fees, (ii) claims falling within Section 15.1, and (iii) claims for which a shorter or longer period is prescribed by mandatory law, no action, regardless of form, arising out of or in connection with this contract may be brought by either party more than twelve (12) months after the party bringing it first knew or, exercising reasonable diligence, should have known of the facts giving rise to the claim, and in no event more than twenty-four (24) months after the event giving rise to the claim, provided that this twenty-four (24) month period shall be tolled for so long as the party bringing the claim neither knew nor, exercising reasonable diligence, could have known of the facts giving rise to it. The parties are sophisticated commercial parties and knowingly agree to this shortened period. If and to the extent this shortened period is unenforceable in a given case under the law applicable to the claim, the shortest period that is enforceable applies in its place.

15.8 THE EXCLUSIONS AND LIMITATIONS SET OUT IN THIS SECTION 15 ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND ARE REFLECTED IN THE FEES AGREED. THEY ARE INDEPENDENT OF, AND SEVERABLE FROM, THE LIMITED WARRANTY AND THE EXCLUSIVE REMEDIES SET OUT IN SECTION 13 AND THE SERVICE CREDITS UNDER THE SLA, AND THEY WILL APPLY AND REMAIN IN FULL FORCE AND EFFECT EVEN IF ANY LIMITED OR EXCLUSIVE REMEDY PROVIDED UNDER THIS CONTRACT IS HELD TO HAVE FAILED OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE HELD UNENFORCEABLE, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE RELEVANT DAMAGES. IF ANY EXCLUSION OR LIMITATION IN THIS SECTION 15 IS HELD UNENFORCEABLE, IT WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED AND THE REMAINING EXCLUSIONS AND LIMITATIONS WILL CONTINUE IN FULL FORCE AND EFFECT.

16. Term, Termination and Data Export

16.1 Term, renewal and notice periods follow from the Order Form. Either party may terminate the contract for cause upon notice in writing if the other party materially breaches the contract and fails to cure the breach within thirty (30) days after receipt of a written notice describing the breach in reasonable detail and requiring its cure. No cure period is required, and termination may be given with immediate effect, where the breach is incapable of cure, where the breaching party has stated that it will not cure, in the case of a material breach of Section 5.2 (use restrictions) or Section 10 (confidentiality), or in the case of repeated breaches of the same kind after a prior notice to cure. Either party may further terminate the contract with immediate effect if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files or has filed against it a petition under any bankruptcy or insolvency law that is not dismissed within sixty (60) days, or has a receiver or trustee appointed over a substantial part of its assets. The Provider’s right to suspend under Section 8 remains unaffected and is not a precondition to termination.

16.2 During the term the Customer may at any time export Customer Content through the export functions provided in the Software Service, in the formats described in the Documentation or the Service Description. Upon the Customer’s request the Provider will provide reasonable assistance with an export; assistance going beyond the standard export functions is a Professional Service and is charged at the Provider’s then-current rates. For a period of thirty (30) days after the effective date of termination or expiry of the contract the Provider will keep the Customer Content available for retrieval and will provide the Customer with the access required for the export, unless prevented from doing so by law or by an order of a competent authority or court. This retrieval period does not extend the term of the contract and does not entitle the Customer to any further use of the Software Service. Upon expiry of the retrieval period the Provider will delete the Customer Content in accordance with the DPA and its deletion concept, subject to statutory retention obligations and to copies contained in routine backups, which are deleted in accordance with the ordinary backup cycle.

16.3 Upon the contract ending, the rights of use granted to the Customer cease, subject only to the retrieval period under Section 16.2. Fees already incurred remain payable; pro-rata refunds are made only where this contract expressly so provides. Sections 7 in respect of outstanding claims, 9.4, 10, 11, 14, 15, 16.2, 16.3 and 18, together with all provisions that by their nature are intended to survive, remain in force after the contract ends.

17. Changes to the Terms and the Annexes

17.1 The Provider may amend these Terms, the SLA or the Service Description with effect for the future; amendments to the DPA are governed exclusively by Section 12.5 of the DPA, provided that the amendment is reasonable for the Customer taking into account the Provider’s interests, and in particular does not materially impair the essential characteristics of the services, the agreed fees or the Customer’s core rights. The Provider will notify the Customer of the amendment in writing at least six (6) weeks before it is to take effect and will draw attention to the amended provisions and to the right of objection.

17.2 If the Customer objects in writing before the amendment takes effect, the amendment does not become effective as between the parties. In that case each party may terminate the affected part of the services upon two (2) months’ notice to the end of a calendar month; until termination takes effect the previous provisions continue to apply.

17.3 Amendments that are necessary in order to comply with mandatory legal requirements or an order of a competent authority or court, or in order to avert a material security risk, take effect without a right of objection; the Provider will notify the Customer thereof without undue delay.

17.4 Changes to the fees are governed exclusively by the provision made in the Order Form.

18. Final Provisions

18.1 In the event of contradictions the following order of precedence applies: (1) the Order Form; (2) the Special Terms of a Module; (3) the DPA; (4) these Terms; (5) the SLA; (6) the Service Description; (7) the Documentation.

18.2 Neither party may assign or transfer this contract or any right or obligation under it without the other party’s prior written consent, not to be unreasonably withheld. Consent is not required for an assignment to an affiliate or in connection with a merger, reorganization, change of control or sale of all or substantially all of the assigning party’s assets or of the business unit to which this contract relates, provided the assignee assumes all obligations under this contract and is not a competitor of the other party. The Provider may assign monetary claims without consent. Any assignment in breach of this Section is void. This contract binds the parties and their permitted successors and assigns.

18.3 Neither party is liable for a failure or delay in performance to the extent caused by an event beyond its reasonable control, including natural disasters, epidemic or pandemic, war, terrorism, civil unrest, governmental action, embargo, labor disputes not involving that party’s own workforce, failures of telecommunications, internet, hosting or platform providers, and denial-of-service or comparable attacks. The affected party will notify the other without undue delay and use reasonable efforts to resume performance. If the event continues for more than sixty (60) consecutive days, either party may terminate the affected services upon notice. This Section does not excuse payment of amounts already due.

18.4 The Software Service, related technology and technical data are subject to export control and economic sanctions laws, including those of the United States (in particular the Export Administration Regulations and the sanctions programs administered by OFAC), the European Union, the Federal Republic of Germany and any other applicable jurisdiction. The Customer will comply with those laws and will not, and will not permit any Authorized User or other person to, directly or indirectly access, use, export, re-export or transfer the Software Service or any output derived from it: (i) into or from any country or territory subject to comprehensive sanctions under those laws; (ii) to or for the benefit of any person listed on, or owned or controlled fifty percent (50%) or more in the aggregate by any person listed on, any applicable restricted-party or sanctions list; or (iii) for any end use prohibited by those laws, including any nuclear, chemical or biological weapons, missile technology or military-intelligence end use. The Customer represents and warrants that neither it, nor any of its affiliates, nor any Authorized User is such a restricted person or is located, organized or resident in such a country or territory. The Provider may suspend or terminate access with immediate effect where necessary to comply with these laws; Section 8 applies accordingly.

18.5 The Provider may name the Customer and use its name and logo as a reference in customer lists and on its website. Any further reference use, in particular case studies, press releases and quotations, requires the Customer’s prior consent. The Customer may revoke its consent for the future at any time upon notice in writing.

18.6 This contract, comprising the Order Form and the documents referred to in Section 18.1, constitutes the entire agreement between the parties in respect of its subject matter and supersedes all prior and contemporaneous proposals, quotations, representations and agreements, whether oral or written, in respect of that subject matter, save for fraud. Amendments and supplements must be made in writing; “in writing” includes email and other electronic records capable of being reproduced in readable form, and the parties agree that such records satisfy any writing requirement under this contract. Section 17 remains unaffected. No employee, agent or representative of the Provider has authority to agree any variation other than in writing as provided in this Section. No failure or delay in exercising a right operates as a waiver, and no waiver is effective unless made in writing.

18.7 This contract, and any dispute or claim arising out of or in connection with it, its subject matter or formation, including non-contractual disputes or claims, is governed by and construed in accordance with the laws of the State of New York, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods. The parties irrevocably agree that the state and federal courts located in New York County, Manhattan, New York have exclusive jurisdiction to settle any such dispute or claim, irrevocably submit to the personal jurisdiction of those courts, and waive any objection to venue and any defense of forum non conveniens. Service of process may be effected in the manner permitted by applicable law, and the Provider may be served at its registered address set out in the Preamble. Nothing in this Section prevents either party from applying to any court of competent jurisdiction for interim or injunctive relief to protect its confidential information or intellectual property, or from enforcing a judgment in any jurisdiction where the other party has assets.

18.8 EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONTRACT, THE SOFTWARE SERVICE OR THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT COUNSEL, THAT THIS WAIVER IS GIVEN KNOWINGLY AND VOLUNTARILY, AND THAT IT IS A MATERIAL INDUCEMENT TO THE OTHER PARTY TO ENTER INTO THIS CONTRACT.

18.9 EACH PARTY AGREES THAT ANY DISPUTE ARISING OUT OF OR RELATING TO THIS CONTRACT WILL BE BROUGHT SOLELY IN THAT PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS MEMBER OR REPRESENTATIVE IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, MASS OR REPRESENTATIVE PROCEEDING. THE PARTIES WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO BRING OR PARTICIPATE IN SUCH A PROCEEDING AGAINST THE OTHER PARTY, AND NO COURT MAY CONSOLIDATE OR JOIN THE CLAIMS OF MORE THAN ONE CUSTOMER WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES. IF THIS SECTION 18.9 IS HELD UNENFORCEABLE IN WHOLE OR IN PART, THE REMAINDER OF SECTION 18 AND OF THIS CONTRACT REMAINS IN FULL FORCE AND EFFECT.

18.10 The Software Service and the Documentation are “commercial products”, “commercial computer software” and “commercial computer software documentation” as those terms are used in 48 C.F.R. § 2.101. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, if the Customer is, or is acquiring the Software Service on behalf of, an agency or instrumentality of the United States Government, the Software Service and the Documentation are licensed to United States Government end users (i) only as commercial items and (ii) with only those rights that are granted to all other end users under these Terms. Unpublished rights are reserved under the copyright laws of the United States. No other or greater rights are granted, and any provision inconsistent with federal procurement regulations is unenforceable only to that extent.

18.11 If any provision of this contract is or becomes invalid, illegal or unenforceable, the remaining provisions are unaffected, and the invalid provision is to be replaced by an enforceable provision that comes closest to the economic purpose the parties pursued with it; the same applies to any omission. The parties are independent contractors; this contract creates no partnership, joint venture, agency, franchise or employment relationship. Notices must be given in writing to the addresses stated in the Order Form or, for the Provider, in the Preamble; notices by email are effective upon transmission to the email address most recently notified for that purpose, provided no delivery failure message is received. Notices of termination and of material breach must additionally be sent to legal@getflip.com.