Terms of Service


Last Updated: [Date]

These terms of service (these "Terms") form a contract between you and Fit Pay, Inc., a Delaware corporation ("Fit Pay, Inc.", “FitPay”, “Flip”, "we", "us", or "our") that governs your access and use of (i) the enterprise application management solution provided by FitPay for cloud-based data collection, management and analysis; (ii) the FitPay websites or applications; and (iii) any written or electronic use or features guides or other documentation provided or made available by FitPay (the "User Guides") (collectively the "Service(s)").

If you are using the Services on behalf of an organization, you are agreeing to these Terms on your own behalf and on behalf of that organization and promising to FitPay that you have the authority to bind that organization to these Terms (in which case, "you" and "your" will refer to you individually and that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Service. You may use the Services only in compliance with these Terms and only if you have the power to form a contract with FitPay and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning this Agreement, please contact us at legal@fit-pay.com.

Please note that FitPay doesn't provide warranties for the Services. These Terms also limit our liability to you. See Sections 14 (NO WARRANTY) and 16 (LIMITATION OF LIABILITY) below for details.

1. CHANGES TO THESE TERMS

We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Flip website. Any changes will be effective upon posting the revised version of these Terms on www.fit-pay.com, or www.fliptopay.com (the “Site” or “Sites”) (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we may notify you via the Service and/or by email to the email address associated with your account. We encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes and the revised Terms. If you don't agree to any of the changes, we're not obligated to keep providing the Service, and you must cancel and stop using the Service.

2. USE OF THE SERVICE

You may use the Service only in strict compliance with these Terms and all applicable laws.

3. CUSTOMER ACCOUNTS

To obtain access to certain Services, you may be required to obtain an account with Flip (in which case you will become a "Registered User"), by completing a registration form, designating a user ID and password, and completing a “know your customer” (KYC) process for financial transactions. Until you apply for and are approved for an account your access to the Service will be limited to the areas of the Service, if any, that Flip makes available to the general public. When registering with Flip and accessing the Services, all Registered Users and persons and entities such Registered Users invite to access their accounts must: (a) provide true, accurate, current and complete information about themselves as requested by the Service's registration form (such information being the "Registration Data"); (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times thereafter, and (c) strictly comply at all times with these Terms. FitPay may deny approval or withdraw such approval at any time in its sole discretion, with or without cause.

Only persons or entities designated by you may use your Flip account. All Registered Users must keep their user IDs and passwords confidential and not authorize any third party to access or use the Service on their or your behalf, unless we provide an approved mechanism for such use. FitPay will not be liable for any loss or damage arising from any unauthorized use of your account(s).

If a third party such as an employer or customer provided you with access to its account, that party has rights to the account and is authorized to: manage your access, reset your password, or suspend or cancel your access; view your usage and profile data, including how and when the account is used; and read or store Content in the account.

4. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION

By registering with Flip, you understand that we may send you communications or data regarding the Services, including but not limited to: (a) notices about your use of the Services, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding FitPay's products and services, via electronic mail. We will give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message. For additional information, please see FitPay’s Privacy Policy at http://www.fliptopay.com/privacy-policy/

5. CONTENT

Except for material that we license to you, we don't claim ownership of any data or content - including currency or its equivalent - that is uploaded, transmitted, stored, or processed in connection with the Services (collectively, “Content”). We also don't control, verify, or endorse the Content that you and others make available on the Service.

If you enable any features that allow you to share the Content with others, anyone you've shared Content with may have access to your Content.

You hereby grant FitPay and its agents the right to transmit, use and disclose your Content solely to the extent necessary to provide the Services, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency.

You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Services and to grant the rights in this Section; and (b) the collection, storage, use, or transmission of the Content doesn't violate any law or these Terms. You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the collection, storage, use, and transmission thereof) complies with these Terms and any and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. FitPay will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.

You must immediately notify FitPay in writing of any unauthorized use of: (a) any Content, (b) any account, or (c) the Services that comes to your attention. In the event of any such unauthorized use by any third party that obtained unauthorized access through you, you will take all steps necessary to terminate such unauthorized use. You will provide FitPay with such cooperation and assistance related to any such unauthorized use as FitPay may reasonably request.

6. CONTENT STORED IN THE UNITED STATES

The Services are provided from the United States. By using and accessing the Services, you understand and consent to the storage and processing of the Content and any other personal information in the United States. In the case of users located outside the United States, FitPay reserves the right to store and process Content, including without limitation personal information, outside of the United States. FitPay complies with the requirements of the EU-US Privacy Shield Framework and the US-Swiss Safe Harbor Framework. Any questions on storage or processing of the Content should be sent to legal@fit-pay.com.

7. SUSPENSION AND TERMINATION OF USE OF THE SERVICES

We reserve the right to temporarily suspend or terminate your access to the Services at any time in our sole discretion, with or without cause, with or without notice, and without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Services for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause FitPay to incur legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code transmitted by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage or processing capacity or bandwidth; or (f) unplanned technical problems and outages. If, in FitPay's determination, the suspension might be indefinite and/or FitPay has elected to terminate your access to the Service, FitPay will use commercially reasonable efforts to notify you through the Service and/or by email to the email address associated with your account. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to the Content that is stored within the Services.

Upon termination by FitPay for reasons other than cause, you may request access to your Content, which we will make available for an additional fee. You must make such request with five (5) days following termination. Otherwise, any Content you have stored in the Services will not be retrievable, and we will have no obligation to maintain any Content you have stored in the Services.

In addition to other termination provisions, if your account is not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (a) you do not engage in any activity in your account within one-hundred eighty (180) days after becoming a Registered User; or (b) you do not engage in any activity in your account for any period of one hundred and eighty (180) consecutive days. In the event of such termination, any Content you may have stored will be lost.

8. ACCEPTABLE USE

You must not use the Services to harm others or the Services. For example, you must not use the Services to harm, threaten, or harass another person, organization, or FitPay and/or to build a similar service, application or website. You must not: damage, disable, overburden, or impair the Services (or any network connected to the Services); resell or redistribute the Services or any part of them; use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out such activities; or use any automated process or service (such as a bot, a spider, or periodic caching of information stored by FitPay) to access or use the Services. In addition, you promise that you will not and will not encourage or assist any third party to:

• modify, alter, tamper with, repair or otherwise create derivative works of any software made available for download via the Services (“Software”);

• reverse engineer, disassemble or decompile the software used to provide or access the Services, including the Software, or attempt to discover or recreate the source code used to provide or access the Services, except and only to the extent that the applicable law expressly permits doing so;

• use the Services in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any User Guides or any other policy, instruction or terms applicable to the Services that are made available on through the Services from time to time ("Policies");

• sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;

• remove, obscure or alter any proprietary rights notices pertaining to the Services;

• access or use the Services in a way intended to improperly avoid: i) incurring fees or ii) exceeding usage limits or quotas;

• use the Services in any situation in which the failure of the Services could lead to death, personal injury, or physical property or environmental damage;

• use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;

• interfere with or disrupt servers or networks used by FitPay to provide the Services or used by other users to access the Services, or violate any third-party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of any Software or the Services;

• access or attempt to access FitPay's other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;

• cause, in FitPay's sole discretion, inordinate burden on the Services or FitPay's system resources or capacity; or

• share passwords or other access information or devices or otherwise authorize any third party to access or use the Software or the Services. We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right to determine whether and what action to take in response to each such instance, and any action or inaction in a particular instance will not dictate or limit our response to a future instance. We will not assume or have any liability for any action or inaction with respect to any Content.

9. UPDATES TO THE SERVICES

FitPay reserves the right to make necessary unscheduled deployments of changes, updates or enhancements to the Services at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.

10. SOFTWARE

If you receive Software from us, its use is governed in one of two ways: 1) If you are presented with license terms that you must accept in order to use the Software, those terms apply; 2) if no license is presented to you, these Terms apply. We reserve all other rights to the Software that may exist or arise outside of these Terms or a license.

Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your right to use the Services ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.

The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Services without U.S. government permission to anyone on any U.S. government exclusion lists. You represent and warrant that you are not on any such lists or under the control of or an agent for anyone on any such lists.

11. THIRD PARTY SERVICES AND CONTENT

All transactions using FitPay's Services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content or services, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Similarly, some features and functionalities of the Services may be provided by third parties, and the use of such features and functionalities may require you to provide your Content to such third parties. We may also provide information regarding third parties (including third party websites) and some third party content to you as part of the Services. We are not, however, responsible for anything on a third party site or any third party content you may gain access to when using the Services, and you irrevocably waive any claim against us with respect to such sites and third party content. FitPay shall have no liability, obligation or responsibility for any correspondence, purchase or promotion between you and any third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third party. Should you incur any potential or actual liability resulting from your use of any third party services (which are not required to use the Services), or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third party services, we will not be responsible unless the problem was the direct result of our negligence or the breach of any agreement between us and you.

12. FITPAY PROPRIETARY RIGHTS; CONFIDENTIALITY

12.1 Proprietary Rights

As between FitPay and you, FitPay or its licensors own and reserve all right, title and interest in and to the Services and all hardware, software (including the Software) and other items used to provide the Services, other than the rights explicitly granted to you to use the Services in accordance with these Terms. No title to or ownership of any proprietary rights related to the Services is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by FitPay. In the event that you provide comments, suggestions and recommendations to FitPay with respect to the Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Services) (collectively, "Feedback"), You hereby grant to FitPay a world-wide, royalty free, irrevocable, perpetual license to use any Feedback in connection with the Services.

12.2 Confidentiality

You acknowledge that you may obtain proprietary information of FitPay (“Proprietary Information”). Such Proprietary Information shall belong solely to FitPay and includes, but is not limited to, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information: You shall not use (except as expressly authorized by these Terms) or disclose FitPay’s Proprietary Information without our prior written consent unless such Proprietary Information becomes part of the public domain without breach of these Terms. You agree to take all reasonable measures to maintain the Proprietary Information in confidence. If you are an organization, you will disclose the Proprietary Information only to those of your employees and consultants as are necessary for the use expressly and unambiguously authorized hereunder, and only if such employees and consultants are bound by confidentiality obligations no less restrictive than those herein. You shall not, without our prior written consent, disclose or otherwise make available any of the Proprietary Information or copies thereof to any third party.

13. PRIVACY

In order to operate and provide the Services, we collect certain information from and about you. As part of the Services, we may also automatically upload certain Content, information about your computer or device, your use of the Services, and Service performance. We use and protect that information as described in our privacy policy ("Privacy Policy") which you may review at http://Fliptopay.com/privacy-policy/. You further acknowledge and agree that we may access or disclose information about you, including the Content, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of FitPay or our customers, including the enforcement of our agreements or policies governing your use of the Services; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of FitPay employees, customers, or the public.

We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Services as part of our efforts to protect the Services, protect our customers, or stop you from breaching these Terms.

14. NO WARRANTY

FITPAY PROVIDES THE SERVICES "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITPAY MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS; THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH JURISDICTIONS, THE DISALLOWED EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

15. INDEMNIFICATION

To the extent permitted by applicable law, you will defend FitPay against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you or your use of the Service in breach of these Terms: (a) infringes a patent, trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of FitPay's actions); or (b) violates applicable law or these Terms. FitPay will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

16. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FITPAY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF FITPAY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF FITPAY AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL TO THREE (3) MONTHS OF YOUR SERVICE FEE FOR THE SERVICES OR TEN DOLLARS ($10.00). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

17. GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES

The laws of the State of California govern the interpretation of these Terms and apply to claims for breach of these Terms, without reference to or application of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Santa Clara County, California for all disputes arising out of or relating to these Terms. FitPay may assign this contract to another entity at any time with or without notice to you.

18. NOTICES

We may send you, in electronic form, information about the Services, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Services or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Services.

19. FEES & PAYMENTS

19.1 Fees

The applicable fees for the Services ("Fees") are available in FitPay’s then-current price list which can be found at www.fliptopay.com. The price stated for the Services excludes all taxes and charges, unless stated otherwise. You are responsible for any taxes and for all other charges incidental to using the Services (for example, data charges and currency exchange settlements). You will pay the Fees in the currency FitPay quoted for your account. FitPay reserves the right to change the quoted currency at any time.

We'll notify you in advance, either through the Services or to the email address you have most recently provided to us, if we change the Fees for the Services; the Fees will remain in force until such time that the Fees are changed in accordance with these Terms.

19.2 Payment

You must be authorized to use the payment method (such as credit card, ACH, wire transfer or any other available payment method - collectively, “Payment Method”) that you enter when you create a billing account. You authorize us to charge you for the Services using your Payment Method and for any paid feature of the Services that you choose to sign up for or use while these Terms are in force. The Fees will be charged at the time you execute transactions using your Flip device.

You must keep all information in your billing account current. You may change your Payment Method at any time. If you tell us to stop using your Payment Method and we no longer receive payment from you for any paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.

Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Services if you fail to timely pay in full.

20. MISCELLANEOUS

20.1. Severability; Entire Agreement

These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Services. It supersedes any prior contract or oral or written statements regarding your use of the Services.

20.2. Assignment and transfer

We may assign, transfer, or otherwise dispose of our rights and obligations under these Terms, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Services.

20.3. Independent Contractors; No third-party beneficiaries

FitPay and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.

20.4. Claims

You must bring any claim related to these Terms or the Services within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.

20.5. Waiver

The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.