FLIP YOUR BUSINESS INC

CUSTOMER TERMS OF SERVICE

Last Modified: Feb 5 2020

These Customer Terms of Service (these “Customer Terms”) describe your rights and responsibilities when using the mobile and/or web-based software platform and related services (the “Services”) offered by FLIP YOUR BUSINESS, Inc. d/b/a FLIP YOUR BUSINESS INC (or its successors or assigns) (“FLIP YOUR BUSINESS INC”, “we”, “our”, or “us”). These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together with all documents referenced herein form the “Agreement” between Customer and us.

By submitting this request, I am confirming the following:

Accuracy: the information I have provided is true and accurate;

OneTrust role: that I understand this service is provided by OneTrust on behalf of FLIPYOURBUSINESS and that once OneTrust provides my request to FLIPYOURBUSINESS, OneTrust will not retain a record of my request;

Privacy: that I understand the information will be handled by OneTrust in accordance with its Privacy Policy and by FLIPYOURBUSINESS in accordance with its Privacy Policy;

Contact: that FLIPYOURBUSINESS has the right to contact me to verify my identity and to process this request.

Please read these terms carefully to ensure you understand each provision. These Customer Terms contain a jury trial waiver provision and a mandatory arbitration provision. If you access or use the Services, or if you click a button or check a box titled “I Agree” or something similar, you acknowledge your understanding of the then-current Agreement and agree to the Agreement. Plain language summaries have been provided throughout the Agreement for your convenience to help clarify certain terms. You acknowledge and agree that these plain language summaries are provided as a courtesy only and are not a substitute for reading the Agreement in its entirety.

1. How Our Services Work

Plain Language Summary: This section provides an overview of how FLIP YOUR BUSINESS INC’s online marketplace for commercial real estate works, and describing certain other features and functionality of our Services

1.1. Generally

The Services are a set of tools to assist stakeholders in the commercial real estate industry. Our stakeholders include commercial real estate brokers, buyers, sellers, lessors, lessees, lenders, etc. Key aspects of our offering include an online marketplace, property listing page, due diligence vault, solicitation for offers, closing checklist, among others. Ultimately, however, all such transactions are themselves governed by purchase and sale agreements or other transaction documents between buyers, sellers, lessors, lessees, brokers, and other involved parties (“Transaction Documents”). From time to time we may also provide other paid products and services, such as comparison data reports.

1.2. Relationship Between Users And Us

The Services simply offer tools to help you through the commercial real estate purchase/sale process and the leasing process; we are not a party to, nor are we responsible in any manner for, any such transaction, whether or not you use the Services, and we are not licensed real estate brokers.

Because we are not licensed real estate brokers, we require that any seller or lessor offering a property via the Services be represented by a broker unless the seller or lessor is a licensed real estate broker or unless otherwise unnecessary. Sellers and lessors may, in their sole discretion, offer commissions for properties subject to the seller’s or lessor’s terms and conditions.

We have no responsibility for any information provided by third-parties, including but not limited to buyers, sellers, lessors, lessees, brokers, and other involved parties. Without limiting the generality of the foregoing, each buyer and lessee is solely responsible for conducting all necessary due diligence activities regarding any property, which may include title and legal status, current and potential valuations, physical condition and aesthetic/tenant improvement attributes, environmental reports, encumbrances, rent roll and pending lease negotiations, tenant defaults or issues and any other pertinent information. Buyers and lessees are encouraged to consult with licensed professionals to review all relevant information, records, and reports. Buyers and lessees assume all risk and potential liability related to due diligence activities. We do not verify the completeness or accuracy of any information or materials provided by sellers, lessors, or brokers.

Any disputes between users of the Services are solely between such users. You acknowledge and agree that we have no obligation or responsibility in connection with any such disputes.

2. General Provisions

2.1. Customers, Authorized Users, And Customer Content

Plain Language Summary: This section describes in more technical legal terms your relationship to us. Users of the Services can submit different types of content via the Services, which may include personal data and other tangible materials.

“Customer” or “you” is you, the individual entering into the Agreement on your own behalf or the entity on whose behalf you are entering into this Agreement. If you would like to purchase a paid membership to the Services, please contact us at upgrade@FLIP YOUR BUSINESS INC.com. If you have purchased a paid membership and your Order Form permits you to authorize additional individuals to use the Services via your membership (each such individual, an “Authorized User”), then you may do so. Each Authorized User must agree to this Agreement when setting up an account and accessing or using the Services, and each Authorized User’s right to use the Services terminates automatically upon the termination of your paid membership.

Only you may use your account. You may submit content or information to the Services, which includes Personal Data (defined below) and User Content (defined below) (“Customer Content”). You are solely responsible for all of the acts and omissions of anyone using your account in relation to the Services and the Agreement, including without limitation any Customer Content submitted through such account. The Services are not intended for and should not be used by anyone under the age of 13.

2.2. Memberships

Plain Language Summary: Certain features and functionalities of our Services are offered only to users who pay for a membership and users they authorize to access the Services through their membership. Membership terms are laid out during onboarding (whether via the Services or a separate paper process).

A membership allows you and your Authorized User(s) (if any) to access the Services. Memberships may be free or paid depending on your relationship with us. Paid memberships allow you to access additional or different features and functionalities, while free memberships provide limited access to the Services. A membership may be procured through the Services interface, or in some cases, via an order form entered into between you and us (each an “Order Form”). Paid memberships commence when we make them available to you. Paid memberships continue for the term specified in the Services or in the Order Form, as applicable (which term may be variable if the Order Form provides for one-time or other limited-time use), and free memberships continue until terminated (in each case, the “Membership Period”).

2.3. Payments

Plain Language Summary: For paid memberships or products and services that we offer for a fee, fees are specified in the Services or in an Order Form and are generally non-refundable.

If you have purchased a paid membership for the Services or have otherwise purchased access to certain paid features and functionalities of the Services, the applicable fees are specified in the Services interface or in an Order Form. Except as set forth in Section 4, payment obligations are non-cancelable and fees paid are non-refundable. Fees stated are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases, except for those taxes based on our net income. Should any payments to us be subject to withholding tax by any government, you will reimburse us for such withholding tax.

2.4. Beta Products

Plain Language Summary: Sometimes we like to roll out new beta features to select users of the Services to see whether they’re worth rolling out to everyone. If we make these features available to you, they’re made available “as is” without any sort of warranty.

Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available" basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.

2.5. Feedback

Plain Language Summary: We love receiving feedback from our users on how we can improve our products and services. If you provide us with any feedback, you give us the right to implement that feedback without any further obligation to you.

You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation, whether to you or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than you. For purposes of clarity, we have no obligation to implement or make any changes to the Services based on any Ideas you provide us.

2.6. Privacy Policy And Protection Of Personal Information

1. Introduction

This policy describes how FLIPYOURBUSINESS collects, shares, and uses your information when you access our services. This policy applies to all of the products and services owned and operated by FLIPYOURBUSINESS Labs Inc., FLIPYOURBUSINESS Brokerage Inc., and FLIPYOURBUSINESS Brokerage LLC, including the content, features, data, and software available on www.FYBN.app ,our mobile applications, and other websites or applications that we operate (“Services”). 

2. The Kinds of Information We Collect

A. Information You Provide

We collect content, images, and other information you provide to us when you access our Services, including when you complete webforms on www.FYBN.app or in our mobile application; create an account with us; communicate with us about our Services via comments, direct message, e-mail, SMS message, or telephone; or respond to one of our surveys. When you upload photos of your BUSINESS to our website, we can see the photo and the metadata that accompanies the image file. Please do not upload BUSINESS photos with people or other identifying personal information in them. 

Categories of information you may choose to provide to us include:






6. Representations; Disclaimer of Warranties

Plain Language Summary: When you use the Services, you’ll comply with applicable laws and licensing requirements when you do so. You’re responsible for your users. We make the Services available on an “as is” and “as available” basis with no availability commitment or otherwise, and without any sort of warranty unless applicable laws require it, in which case you’re entitled to those legally required warranties.

You represent and warrant that you have validly entered into the Agreement and have the legal power to do so, and that you will use the Services in compliance with all applicable laws, rules, and regulations, including without limitation any licensing requirements. ALL INFORMATION PROVIDED VIA THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS PROFESSIONAL ADVICE. NO ACTION SHOULD BE TAKEN BASED UPON INFORMATION PROVIDED VIA THE SERVICES WITHOUT FIRST SEEKING INPUT FROM AN INDEPENDENT PROFESSIONAL WHO IS LICENSED AND/OR QUALIFIED IN THE APPLICABLE AREA. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM, ON BEHALF OF OURSELVES AND ON BEHALF OF OUR VENDORS AND LICENSORS, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7. Limitation of Liability

Plain Language Summary: Our aggregate liability under the agreement is limited to direct damages, and won’t exceed the greater of $100 or the amounts you paid to us in the last 12 months unless applicable laws require something else, in which case you’re entitled to what applicable laws require.

IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF US $100 OR THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.

IN NO EVENT WILL WE OR ANY OF OUR VENDORS OR LICENSORS HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

You are responsible for all login credentials, including usernames and passwords, for your account. We will not be responsible for any damages, losses or liability to you or anyone else, if such information is not kept confidential by you, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8. Indemnification

Plain Language Summary: If we’re exposed to any sort of liability relating to certain of your acts (e.g., your submission of infringing content, your violation of the agreement, any use of your account (whether or not authorized by you), or any dispute between you and other users of the Services), then you’ll step into our shoes and cover that liability for us.

You agree to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Services, including any Customer Content or other content transmitted or received by you; (b) your violation of any term of the Agreement, including without limitation any breach of your representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) Customer Content or any content that is submitted via your account, including without limitation misleading, false, or inaccurate information; (f) your gross negligence, fraud, or willful misconduct; (g) any other party’s access and use of the Services with your unique username, password or other appropriate security code (provided that such access and use was not our fault); or (h) any dispute between you and any other user of the Services, whether in relation to any Transaction Documents or otherwise.

9. Confidentiality

Plain Language Summary: We may provide each other with certain confidential information. We’ll keep that information confidential and won’t use it except to further our relationship under the agreement

9.1 Definition

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Content. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

9.2 Protection and Use of Confidential Information

The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.

9.3 Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

10. Miscellaneous

Plain Language Summary: We may provide each other with certain confidential information. We’ll keep that information confidential and won’t use it except to further our relationship under the agreement

10.1 Publicity

Neither party may publicly use the other party’s company name, logo, or other trademarks for any purpose without the other party’s prior written consent; provided that we may place your name and logo on our website and other marketing materials for the purpose of identifying you as a user of our products and services without such consent. All use of the other party’s trademarks, and all goodwill accruing therefrom, will inure to the sole and exclusive benefit of the owner of the trademarks. Such consent is revocable at the owner’s sole discretion.

10.2 Third Party Products, Links, and Information

Plain Language Summary: We don’t endorse any third-party products and services, and the agreement doesn’t apply to your use of those products and services. The Services may integrate with, or contain, third party products, services, materials, or information, or links thereto that are not owned or controlled by us (“Third Party Materials”). We do not endorse or assume any responsibility for any such Third Party Materials. If you access any third party website or service, you does so at your own risk, and Customer acknowledges and agrees that the Agreement and our Privacy Policy https://www.flipyourbusiness.com/privacy do not apply to your use of such sites or services. Customer expressly relieves us from any and all liability arising from its use of any Third Party Materials.

10.3 Force Majeure

Plain Language Summary: Neither you nor we are responsible if something out of our reasonable control prevents us from performing under the agreement.

Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

10.4 Relationship of the Parties; No Third Party Beneficiaries

Plain Language Summary: You’re our customer; we’re your service provider. Nothing more, nothing less.

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.

10.5 Email Communications

Plain Language Summary: We can provide you legal notices through email or the Services. You’re required to send us legal notices via email.

Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to di.mo@flipyourbusiness.com. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

10.6 Modifications

Plain Language Summary: Like all (or at least most) online terms, we need the ability to change the agreement from time to time as applicable laws and our products, services, and businesses change. We’ll keep the “last modified” date at the top of this page updated, and if there’s anything particularly substantial in the changes, we’ll tell you about it.

We may change these Customer Terms and the other components of the Agreement (except any Order Forms) in accordance with this Section. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

10.7 Waivers

Plain Language Summary: Any waiver of rights needs to be in writing and signed.

No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

10.8 Severability

Plain Language Summary: If a term of the agreement is illegal, a court can modify it to make it as close as possible to the original term in effect (while no longer being illegal).

The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

10.9 Assignment

Plain Language Summary: You can’t transfer the agreement or your rights or obligations under it to anyone else without our approval. We can transfer it without your consent to a corporate affiliate or a successor if we’re acquired by them, merged with them, etc.

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety (including all Order Forms), without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.10 Governing Law

Plain Language Summary: We’re located in California, so California law applies.

The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that the Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

10.11 Venue; Waiver of Jury Trial; Fees

Plain Language Summary: We’re located in the Los Angeles County area, so if there’s any litigation arising out of or relating to the agreement, we’ll take care of it in Los Angeles County, and we’ll do it in front of a judge and not a jury. If one of you or us sues to enforce our rights under the agreement, the loser pays the winner’s fees.

The state and federal courts located in Los Angeles County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

10.12 Arbitration

Plain Language Summary: Because courts are expensive, you and we agree to arbitrate our disputes through JAMS in Los Angeles County subject to certain cost-shifting requirements that may or may not apply.

Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at di.mo@flipyourbusiness.com and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Los Angeles County, California, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) 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 (iii) 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. Nothing in this Section shall 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.

10.13 Entire Agreement

Plain Language Summary: The agreement takes precedence over any other conversations or agreements we may have had with you about the Services. Only the agreement will apply.

The Agreement, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) these Customer Terms; and (3) any other documents or pages referenced in these Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.

10.14 Additional Terms for Mobile Applications

Plain Language Summary: Apple requires us to include this language. Basically, the Services are offered by us and not Apple, so you shouldn’t go to Apple with any sort of issues. Talk to us instead.

The following applies to any Services acquired from the Apple App Store (“Apple-Sourced Software”): Customer acknowledges and agree that the Agreement is solely between Customer and us, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Customer’s use of the Apple-Sourced Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software (if any); to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that Apple is not responsible for addressing any claims by Customer or any third party relating to the Apple-Sourced Software or Customer’s possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Customer and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as relates to Customer’s license of the Apple-Sourced Software against Customer as a third-party beneficiary thereof.

10.15 Survival

Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 2.3, 2.5, 3.1(a), 3.2, 3.3, 3.5, 4.6, and 5 through 10.

10.16 Contacting Us

Please also feel free to contact us if you have any questions about the Customer Terms or any other part of the Agreement. You may contact us at di.mo@flipyourbusiness.com or at our mailing address set forth in Section 5 above.

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 by telephone at (408) 856-5031.

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