These End User Terms of Service (these “Terms”) of Flex Technology Co (“Flex”, “we”, “our”, or “us”) describe your rights and responsibilities when accessing and/or using our website, located at https://www.withflex.com, and any and all other software, documentation, and online, mobile-enabled, and/or digital products and services we make available (collectively, the “Service”). 

These Terms are a contract between you and Flex. You must read and agree to these Terms before using the Service. If you do not agree, you may not use the Service. These Terms apply to all visitors, users, and others who access or use the Service (“Users”).

By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms, and that you have read and understood our Privacy Notice (as it may be updated from time to time, our “Privacy Notice”). We reserve the right to modify these Terms and will provide notice of these changes as described below. 

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 11.2 AND CLASS ACTION/JURY TRIAL WAIVER IN SECTION 11.3 THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS HEREIN, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING WITHOUT LIMITATION ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.

1. Eligibility; Access to the Service; User Accounts; Emails from Flex

   1. Eligibility

You may use the Service only if you are eighteen (18) years of age or older and can form a legally binding contract with us, and only in compliance with all applicable local, state, national, and international laws, rules and regulations (collectively, “Applicable Law”) and these Terms. The Service is not available to any Users that we have previously removed from the Service or who are not eligible or permitted to use the Service under Applicable Law. If you use the Service on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of that entity with the authority to bind that entity to these Terms, and that you agree to these Terms on the entity’s behalf.

In order to use the Service, you must have a usable debit card linked to a Health Savings Account (“HSA”) or Health Care Flexible Spending Account (“HCFSA”), as such accounts are defined under U.S. law. You may also be required to fill and submit a medical intake form and provide certain other information that may be requested by Flex (collectively, “Intake Information”) for review and approval by Flex.

Without limiting the generality of the foregoing, any access to, or use of, the Service by non-U.S. residents is strictly prohibited and in violation of these Terms. We make no representations that the Service is appropriate or available for use in other locations. By using the Service, you represent that you are a U.S. resident.

2. Access to the Service

Subject to your compliance with these Terms, you are hereby granted a non-exclusive, limited, non-transferable, and freely revocable right to access and use the Service for your personal use only, strictly as permitted by the features of the Service. We reserve all rights not expressly granted herein to the Service and our Intellectual Property (as defined in Section 5.1 below).

3. User Accounts

You must register an account on the Service (“User Account”) in order to use the Service. Your User Account gives you access to certain services and functionalities that we may establish and maintain as part of the Service from time to time, in our sole discretion. We may maintain different types of User Accounts for different types of Users. You acknowledge that you do not own your User Account.

You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account credentials secure. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for, and expressly disclaim any responsibility for, any losses caused by any unauthorized use of your User Account.

If requested, you agree to diligently assist us in responding to requests and inquiries with respect to your User Account and/or materials or transactions associated with you or your User Account, including without limitation by providing us with all information and assistance we may reasonably require, and/or responding promptly and accurately to any such requests and inquiries should we connect between you and the inquirer.

4. Emails from Flex

By providing us your email address, you consent to our use of that email address to send you notices and requests related to the Service, including without limitation any notices and requests required by Applicable Law, in lieu of communication by postal mail. 

We may also use your email address to send you other messages related to your User Account and your use of the Service, such as messages confirming transactions or notifying you of changes or updates to features of the Service or your User Account, and messages from our clinical team requesting additional information in connection with your Intake Information or related matters (such emails, “Transactional Emails”), and emails about commercial or promotional offers for products and services offered by Flex or Flex’s third-party business partners (such emails, “Commercial Emails”). If you do not want to receive Commercial Emails, you may opt out by clicking on the “unsubscribe” link in the email message received. 

Unsecured email or other unsecure electronic methods of communication are not confidential means of communication and there is a possibility that a third party could intercept and see these messages. By providing us your email address, you acknowledge and consent to these risks.

5.  Text Messages from Flex

By providing your phone number, you expressly consent and agree that we may contact you using written, electronic, and/or verbal means, including by manual dialing and/or using an automatic dialing system to send SMS/text messages to your phone number as necessary to (a) obtain additional information regarding your Intake Information; and (b) as otherwise necessary to service your User Account or enforce these Terms, our policies, or Applicable Law, even if the provided phone number is registered on any federal or state Do-Not-Call registry. For purposes of clarity, the communications described in this paragraph are transactional in nature, and not promotional.

2. Restrictions and Acceptable Use

Except to the extent a restriction is prohibited by law, you agree not to do, and not to assist, permit. encourage or enable any third party to do, any of the following:

• decipher, disassemble, reverse engineer, decode or decompile any part of the Service;

• use any robot, spider, scraper, crawler, data mining tool, data gathering or extraction tool, or any other automated means, to access, search, collect, download, copy or record information or data from the Service or to access the Service, other than through the software and/or other technology provided or authorized by us (except that we grant the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);

• copy, rent, lease, sell, loan, transfer, assign, sublicense, resell, distribute, modify, alter or create derivative works of any part of the Service or any of our Intellectual Property (defined in Section 5.1 below);

• use the Service in any manner or for any purpose that (a) violates or promotes the violation of any Applicable Law, contractual obligation or right of any person, including without limitation any intellectual property rights or other proprietary rights, rights of privacy, or rights of personality, (b) is fraudulent, false, deceptive or defamatory, (c) promotes hatred, violence or harm against any individual or group, or (d) otherwise may be harmful or objectionable (in our sole discretion) to us, our service providers, our suppliers, our Users, or any other third party; 

• use the Service (a) to develop competing products or services, (b) for benchmarking or competitive analysis of the Service, or (c) otherwise to our detriment or disadvantage; 

• Attempt to probe, scan or test the vulnerability of any Flex system or network or breach any security or authentication measures;

• avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent the measures we or our providers may use to prevent or restrict access to the Service;

• attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions or access to or from, the servers running the Service, including without limitation by transmitting invalid data, viruses, worms or other software agents through the Service, or overloading, flooding, or spamming the Service;

• transmit spam, chain letters, or other unauthorized or unsolicited advertising, promotional materials, email, or other form of solicitation, or alter or forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Service to send altered, deceptive or false source-identifying information;

• impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use the Service for any invasive or fraudulent purpose; 

• collect, store or harvest any personally identifiable information, including without limitation account-related information, from the Service;

• share passwords or authentication credentials for the Service;

• identify or refer to us or the Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you (or a third party) and us; 

• use, display, mirror or frame the Service or any individual element within the Service, our name, any of our trademarks, logos or other proprietary information, in each case without our prior express written consent; or

• otherwise use the Service in any manner that impacts (a) the stability of our servers, (b) the operation or performance of the Service or any User’s use of the Service, or (c) the behavior of other applications using the Service.

You agree that a breach of this Section 2 shall constitute a material breach of these Terms.

We are not obligated to monitor your access to or use of the Service. However, we have the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, and to comply with Applicable Law or other legal or contractual requirements. Without limiting the foregoing, we have the right to investigate violations of these Terms or conduct that affects the Service, and we may also consult and cooperate with law enforcement authorities to investigate or prosecute Users who violate Applicable Law.

3. Changes to the Service; Termination and Suspension

We may, with or without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to your User Account and/or the Service with or without notice and without liability, for any reason, including if, in our sole determination, you violate any provision of these Terms, or for no reason. Upon their termination for any reason or no reason, you continue to be bound by these Terms.

4. User Content

The Service may allow you to submit, post, display, provide, or otherwise make available certain content or information (“User Content”).

WE CLAIM NO OWNERSHIP RIGHTS OVER YOUR USER CONTENT, AND, AS BETWEEN YOU AND US, IT REMAINS YOURS. 

You grant, and you represent and warrant that you have all rights necessary to grant, to us an irrevocable, perpetual, transferable, sublicensable (through multiple tiers), fully paid, royalty-free, and worldwide right and license to use, copy, store, modify, distribute, reproduce, publish, list information regarding, make derivative works of, and display the User Content: (a) to maintain and provide the Service; (b) solely in de-identified or aggregated form, to improve our products and Services and for our other business purposes, such as data analysis, customer research, developing new products or features, identifying usage trends, and providing demographic information to our third-party business partners (and we will own all such de-identified or aggregated data); and (c) to perform such other actions as described in our Privacy Notice or as authorized by you in writing.

In connection with your User Content, you affirm, represent, and warrant the following:

• you have the written consent of each and every identifiable natural person referred to or mentioned in your User Content, if any, and each such person has released you from any liability that may arise in relation to such use;

• you have obtained and are solely responsible for obtaining all consents as may be required by Applicable Law in connection with your provision of any User Content relating to third parties;

• your User Content or our use thereof as contemplated by these Terms and the Service will not violate any Applicable Law or infringe any rights of any third party, including without limitation any intellectual property rights or other proprietary rights, or privacy rights; and

• to the best of your knowledge, all of your User Content and all other information that you provide to us is truthful and accurate.

We are not obligated to review or edit any of your User Content or the User Content of other Users. However, we have the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, and to comply with Applicable Law or other legal or contractual requirements. We reserve the right, but are not obligated, to remove or disable access to any User Content at any time and without notice, including without limitation if we, at our sole discretion, consider it objectionable or in violation of these Terms. 

We take no responsibility and assume no liability for any of your User Content or the User Content of other Users. You will be solely responsible for your User Content and the consequences of submitting it, posting it, displaying it, providing it, or otherwise making it available on or through the Service. 

5. Our Proprietary Rights

   1. Intellectual Property

You acknowledge and agree that the Service, and all materials and content displayed or made available on the Service (other than content owned by you), and all software, algorithms, code, technology and intellectual property underlying and included in or with the Service, and all intellectual property rights and other proprietary rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”) are the exclusive property of Flex and its licensors, providers, distributors, and suppliers. Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any intellectual property rights or other proprietary rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of our Intellectual Property. Use of our Intellectual Property for any purpose not expressly permitted by these Terms is strictly prohibited.

2. Feedback

You may choose to, or we may invite you to submit, comments, feedback or ideas about the Service, including without limitation about how to improve the Service or our other products and services (collectively, “Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Flex under any fiduciary or other obligation, and that we will own such Feedback, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.

3. Usage Data

We may collect, maintain, process, and use, or you may provide to us, diagnostic, technical, usage, and related information, including without limitation information about your computers, mobile devices, systems, and software (collectively, “Usage Data”). You agree that all Usage Data is owned solely and exclusively by us, and, to the extent any ownership rights in or to the Usage Data vest in you, you hereby assign to us all rights, title, and interest in and to the same. Accordingly, we may use Usage Data or any portion thereof for any lawful purpose, including without limitation: (a) to provide and maintain the Service; (b) to develop and improve the Service; (c) to monitor your usage of the Service; (d) for Service-related research and analytics; and (e) to share Service-related analytics and other derived Usage Data with third parties, solely in deidentified or aggregated form. The Service may contain technological measures designed to prevent unauthorized or illegal use of the Service, and we may use these and other lawful measures to verify your compliance with these Terms and to enforce our rights, including without limitation all intellectual property rights and other proprietary rights, in and to the Service.

6. Our Privacy and Data Security Policies

   1. Privacy

By using the Service, you understand and acknowledge that your personal information will be collected, used, and disclosed as set forth in our Privacy Notice

2. Security

We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

7. Third-Party Services

The Service may enable you to access, or purchase products and services provided by, third parties that are not owned or controlled by Flex (collectively, “Third-Party Services”), and certain functionality of the Service may require your use of Third-Party Services. You are responsible for the transactions you make through any Third-Party Services, and the operators of the Third-Party Services you choose to transact with are responsible for fulfilling those transactions. If you have any questions or issues regarding your use of any Third-Party Service, including without limitation any transactions that you have made through such Third-Party Service, please contact the applicable Third-Party Service directly.

IF YOU USE A THIRD-PARTY SERVICE, YOU ARE SUBJECT TO AND AGREE TO THE APPLICABLE THIRD-PARTY SERVICE’S TERMS AND CONDITIONS AND/OR ANY OTHER TERMS MADE AVAILABLE ON OR AGREED IN CONNECTION WITH SUCH THIRD-PARTY SERVICES. WE DO NOT ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY SUCH THIRD-PARTY SERVICES. IF YOU ACCESS OR USE A THIRD-PARTY SERVICE, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND THAT THESE TERMS AND OUR PRIVACY NOTICE DO NOT APPLY TO YOUR USE OF SUCH THIRD-PARTY SERVICES. 

YOU EXPRESSLY RELIEVE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY SERVICE. 

8. Indemnity

You agree to defend, indemnify and hold us and our affiliates, agents, suppliers or licensors (and our and their employees, contractors, agents, officers and directors) harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorney’s fees) arising from: (a) your access to or use of the Service; (b) your violation of any provision of these Terms; (c) your violation of any third-party right, including without limitation any intellectual property right or other proprietary right, or rights of privacy; (d) your violation of any Applicable Law; (e) content you provide to us on or through the Service, including without limitation any misleading, false, or inaccurate information therein; (f) your willful misconduct; or (g) any third party’s access to or use of the Service with your User Account.

9. No Warranty; Disclaimers

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT ANY CONTENT ON THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICE OR ANY DOWNLOAD OF CONTENT THROUGH THE USE OF THE SERVICE. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

FURTHER, WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THE PROVIDERS OF SUCH THIRD-PARTY SERVICES.

FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR USER ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (G) YOUR DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. 

IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $100.00.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

    1. Governing Law

These Terms are governed by the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Notwithstanding the preceding sentence, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the arbitration provision in Section 11.2 below (the “Arbitration Provision”) and preempts all state laws to the fullest extent permitted by law. If the FAA is determined to not apply to any issue that arises from or relates to the Arbitration Provision, then that issue shall be resolved under and governed by the law of your state of residence. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in the State of Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property rights or other proprietary rights, as set forth in the Arbitration Provision, including without limitation any provisional relief required to prevent irreparable harm. You agree that the State of Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration Provision is found to be unenforceable.

2. Arbitration

READ THIS SECTION (THIS “ARBITRATION PROVISION”) CAREFULLY BECAUSE IT REQUIRES THE USE OF ARBITRATION IN ANY DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. 

This Arbitration Provision applies to and governs any dispute, controversy, or claim between you and us that arises out of or relates to, directly or indirectly: (a) these Terms, including without limitation the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Service, including without limitation the receipt of any advertising, marketing, or other communications from us; (c) any transactions through, by, or using the Service; or (d) any other aspect of your relationship or transactions with us, directly or indirectly (“Claim” or collectively, “Claims”). The Arbitration Provision shall apply, without limitation, to all Claims that arose or were asserted before or after your consent to these Terms. 

If you are a new User, you can reject and opt-out of this Arbitration Provision within thirty (30) days of accepting these Terms by emailing us at support@withflex.com with your first and last name and stating your intent to opt-out of this Arbitration Provision. Opting out of this Arbitration Provision does not affect the binding nature of any other part of these Terms, including without limitation the provisions regarding controlling law or in which courts any disputes must be brought. 

For any Claim, you agree to first contact us at support@withflex.com and attempt to resolve the dispute with us informally. In the unlikely event that Flex has not been able to resolve a Claim after sixty (60) days, each of you and we agree to resolve the Claim through binding arbitration by the American Arbitration Association (“AAA”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Provision, this Arbitration Provision shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or the State of California, unless you and we agree otherwise. If you are an individual using the Service for non-commercial purposes: (a) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and we agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Provision, including without limitation any claim that all or any part of this Arbitration Provision is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues, including without limitation any issues relating to whether any provision of these Terms is unconscionable or illusory and any defense to arbitration, including without limitation waiver, delay, laches, unconscionability, or estoppel.

NOTHING IN THIS ARBITRATION PROVISION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS; OR PREVENTING YOU FROM ASSERTING CLAIMS IN SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.

If this Arbitration Provision is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Provision, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Arbitration Provision. Notwithstanding the foregoing, if the class action/jury trial waiver in Section 11.3 is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Provision shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.

3. Class Action/Jury Trial Waiver

WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSONS CLAIMS. YOU AND FLEX AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND FLEX AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FLEX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. 

12. U.S. Government Restricted Rights

If the Service is being used by the U.S. Government, the Service is commercial computer software and documentation developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, will be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) will be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-3, DOD FAR Supplement and its successors.

13. General Provisions

    1. Assignment

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent. Any attempted transfer or assignment in violation hereof will be null and void.

2. Notification Procedures and Changes to these Terms 

We may provide notifications, whether such notifications are required by Applicable Law or are for business-related purposes, to you via email notice, written or hard copy notice, or through the Service, as we determine in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain notifications as required under Applicable Law or as described in these Terms or our Privacy Notice. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. 

We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the last modified date at the top of this page and notify you that material changes have been made to these Terms. These Terms apply to and govern your access to and use of the Service effective as of the start of your access to or use of the Service, even if such access or use began before publication of these Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any part of these Terms or any future Terms of Service, do not use or access (or continue to access) the Service.

3. Entire Agreement/Severability

These Terms, together with any amendments and any additional agreements you may enter into with us in connection with the Service, will constitute the entire agreement between you and us concerning the Service. None of our employees or representatives are authorized to make any modification or addition to these Terms. Any statements or comments made between you and any of our employees or representatives are expressly excluded from these Terms and will not apply to you or us or your use of the Service. Except as otherwise stated in the Arbitration Provision, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. 

4. No Waiver

No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.

5. Contact

If you have any questions about these Terms, please contact us at support@withflex.com. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.