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Last Updated - June 04, 2026
Flyntlok Inc. Master Subscription Terms
IMPORTANT:
PLEASE BE ADVISED THAT BY AGREEING TO THESE TERMS YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW, WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS AND WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS-ACTION SUIT.
PLEASE READ THESE MASTER SUBSCRIPTION TERMS CAREFULLY AS THEY CONTAIN PROVISIONS THAT GOVERN HOW YOU CAN BRING CLAIMS BETWEEN YOU AND FLYNTLOK, INCLUDING THE ARBITRATION AGREEMENT AND WAIVER OF JURY TRIAL IN SECTION 15(H) BELOW. THE ARBITRATION AGREEMENT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH FLYNTLOK THROUGH FINAL AND BINDING ARBITRATION. THESE MASTER SUBSCRIPTION TERMS OUTLINE HOW SUCH CLAIMS ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE MASTER SUBSCRIPTION TERMS. ALL CLAIMS AND DISPUTES ARISING UNDER THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE SUBSCRIBER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER SUBSCRIBER.
THESE MASTER SUBSCRIPTION TERMS GOVERN SUBSCRIBER’S ACCESS TO AND USE OF THE FLYNTLOK SOFTWARE PLATFORM AND ALL RELATED SERVICES. THEY DO NOT APPLY TO GENERAL USE OF THE FLYNTLOK WEBSITE, WHICH IS GOVERNED BY THE SEPARATE WEBSITE TERMS OF USE WHICH ARE INCORPORATED BY REFERENCE.
BY AGREEING TO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THEM AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Welcome to Flyntlok! Please carefully review these Flyntlok Master Subscription Terms (these “Master Subscription Terms”), as they contain important information about your legal rights, remedies and obligations. By subscribing to or using any of Flyntlok’s Services (as defined below), you (“Subscriber” or “you”) are entering into a legally binding agreement with Flyntlok, Inc. and its affiliates (together referred to as “Flyntlok”) that governs Subscriber’s access to and use of the Services.
The agreement consists of (i) Subscriber’s subscription agreement (the “Subscription Agreement”), and (ii) these Master Subscription Terms, which incorporate by reference any other terms or policies applicable to Subscriber’s use of the Services that Flyntlok makes available, such as through an online signup flow, or any addendum entered into by the parties (collectively, the “Agreement”). In the event of any dispute between the Subscription Agreement and these Master Subscription Terms (including any terms, attachments or addendum incorporated herein), these Master Subscription Terms shall control unless the Subscription Agreement expressly says otherwise, and in such case, only to the extent of such conflicting terms. Defined terms used but not defined in the Master Subscription Terms shall have their meaning set forth in the Subscription Agreement.
In addition, Flyntlok’s Privacy Policy (the “Privacy Policy”) governs how Flyntlok collects, uses and shares Subscriber personal information and the personal information of Subscriber’s customers during the course of providing Services under these Master Subscription Terms. The Privacy Policy is not a part of these Master Subscription Terms and may be changed from time to time, but by agreeing to these Master Subscription Terms, Subscriber acknowledges and consents to Flyntlok’s data processing practices including, but not limited to the collection, use, sharing and disclosure of its personal information (and that of its customers) and other data as described in the then-current version of the Privacy Policy.
1.
Scope of Services; Modification of Terms
Flyntlok offers a hosted suite of dealer and inventory management software services, which includes the dealer management software solution and certain additional services to which you subscribed to in your Subscription Agreement or may later subscribe or use in addition to your base subscription (collectively the “Services” and each a “Service”). Subscriber understands and agrees that the Services may be unavailable or interrupted from time to time due to scheduled maintenance, enhancements, outages of third-party providers, internet disruptions or other causes beyond Flyntlok’s reasonable control, and that such unavailability or interruptions do not constitute a breach of this Agreement. Flyntlok does not guarantee any specific uptime or service level.
Flyntlok reserves the right to modify the Services (or any part thereof) from time to time, and Flyntlok is not liable to Subscriber or to any third party for any modification of the Services.
Flyntlok works constantly to improve its Services and Software with updates, new features, and new services. As a result, Flyntlok may need to change these Master Subscription Terms from time to time to accurately reflect its Services and practices. If updated, the revised Master Subscription Terms will supersede prior versions. Unless otherwise provided in writing, changes will be effective upon the “Last Updated” date located at the top of this page. Flyntlok agrees that changes cannot be retroactive. Flyntlok will use commercially reasonable efforts to provide you advance written notice of any material changes to these Master Subscription Terms prior to such terms becoming effective. For any other changes, Flyntlok will publish the revised Master Subscription Terms and update the “ Last Updated” date above. Subscriber’s continued use of the Services after the modification of these Master Subscription Terms constitutes Subscriber’s acceptance of any revisions.
2.
Subscriber Responsibilities, Acknowledgments and Authorizations
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- Subscriber Systems. Subscriber shall be solely responsible for procuring and maintaining the necessary hardware and software for accessing and utilizing the Software.
‍ - Subscriber Acknowledgements. As a dealer and inventory management software company, Flyntlok provides software tools and technology solutions, including the Software, and certain support and consulting services, including the Services, to assist dealers, including Subscriber, with inventory management, CRM, sales, service and rental. Subscriber acknowledges and agrees that Subscriber is solely responsible for ensuring its use of the Software and Services complies with the terms of this Agreement, and all applicable laws, regulations (including applicable tax rules), and industry standards, and for making its own decisions based on its specific circumstances and objectives. Subscriber further acknowledges and agrees that Flyntlok provides a hosted software platform only and does not act as a dealer, broker, fiduciary, or agent for any customer or vendor. Subscriber acknowledges and agrees that Subscriber is responsible and liable for all use of the Flyntlok Products from access provided by Flyntlok pursuant to this Agreement, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting any of the foregoing, Subscriber is responsible for all acts and omissions of any Authorized User, and any act or omission by an Authorized User will be deemed an act or omission by Subscriber, including any breach of the Agreement. Subscriber shall use reasonable efforts to ensure all Authorized Users are aware of the provisions in this Agreement, as applicable to each Authorized User, and shall cause such users to comply with the same.
‍ - Authorized User Accounts. Subscriber may be required to establish an account to access the Software and/or the Services (an “Account”). The identification and password associated with each Subscriber Account (the “Account ID”) is personal in nature and may only be used by the employee or contractor of Subscriber (“Authorized User”) associated with that Account, provided that each Account ID may be transferred from one individual to another if the original Authorized User is no longer permitted to use the Services. Except for the foregoing, Subscriber will not, and shall ensure that each Authorized User does not, distribute or transfer any Account or Account ID or provide any third party the right to access any Account or Account ID. In connection with establishing each Account and accessing the Software and Services, each Authorized User will be asked to submit certain information about your entity or organization and the individual Authorized User. You agree that all information provided to Flyntlok will be true and complete, and that each Authorized User will promptly update any information to keep it accurate and current. Account IDs may not be selected with the intent to impersonate any person or entity. Flyntlok reserves the right to refuse any Account ID that Flyntlok, in its sole discretion, deems offensive or misleading. Subscriber is solely responsible for all use of the Software and the Services through each Account and for compliance by each Authorized User with the applicable terms of this Agreement and any other agreement to which the Authorized User agrees in connection with the Services as well as any costs, fees, liabilities, or damages incurred through the use of your Accounts (or any Account IDs), whether lawful or unlawful. Subscriber will ensure that all Account IDs issued to Subscriber, or any Authorized User are kept secure and confidential. Subscriber will notify Flyntlok immediately if any Account ID is lost, stolen, or otherwise compromised, or upon becoming aware of any unauthorized access to our use of the Software, the Services, or any Account ID or Account. Subscriber shall ensure that all Authorized Users use the Services in compliance with these Master Subscription Terms and all applicable laws, and Subscriber shall be responsible for all actions and omissions of its Authorized Users.
‍ - Provision of Subscriber Data. The provisions of this Section 2.d shall apply in the event that Flyntlok provides any Services under this Agreement that require Flyntlok to receive and/or process Subscriber Data.
‍- Subscriber shall be solely responsible for providing, either directly or through an authorized third-party, all Subscriber Data and other inputs necessary for Flyntlok to perform the Services. Subscriber represents and warrants that all such Subscriber Data and other inputs will be complete, accurate, and provided in a timely manner. Subscriber further represents and warrants that it has obtained, and will maintain, all necessary rights, permissions, and legally valid consents from all end users and other data subjects for the collection, use, disclosure, and transmission of their personal information to Flyntlok in connection with the Services, and that such provision and use of Subscriber Personal Data complies with all applicable laws and regulations. Subscriber represents, warrants, and covenants to Flyntlok that Subscriber owns, or otherwise has and will have the necessary rights in and relating to the Subscriber Data, so that, as received by Flyntlok, and used in accordance with this Agreement, Flyntlok is not, and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights, of any third party, or violate any applicable law.
‍ - Subscriber is responsible for the quality and accuracy of all Subscriber Data and Flyntlok shall have no obligation to conduct any further diligence as to the quality, completeness or accuracy of such Subscriber Data or other input provided to Flyntlok by Subscriber or any party providing data on Subscriber’s behalf. Flyntlok shall not be responsible or liable in any way for any delay resulting from any failure by Subscriber to comply with Subscriber’s responsibilities under this Section. Flyntlok shall not be responsible or liable in any way for its use of Subscriber Data in accordance with the rights granted by Subscriber to Flyntlok under this Agreement.
‍ - In the event that Subscriber is directly providing Subscriber Business Data to Flyntlok for the provision of Services hereunder, Subscriber shall be solely responsible for all of the costs and the expense of providing such data to Flyntlok. Subscriber Business Data may be delivered to Flyntlok through input by Subscriber, on tangible media, by e-mail attachment, and/or by telecommunications link to the computer housing the Services.
‍ - In the event that any categories of Subscriber Business Data is provided by a third-party on Subscriber’s behalf, Flyntlok will deliver to Subscriber a “Data Access Authorization” (the form of which shall be determined by Flyntlok) for Subscriber and Subscriber’s named data providers to execute and provide to the sources of the data feeds required for Flyntlok to deliver the Services. Subscriber and Subscriber’s named data providers will execute and deliver the Data Access Authorization to Flyntlok. Upon receipt of the complete authorization, Flyntlok may receive the necessary data for Subscriber to use the Services. Subscriber acknowledges that Flyntlok’s ability to obtain and process such data is dependent on third-party cooperation and Flyntlok shall not be liable for any failures, delays, or inaccuracies in such third-party data delivery. Subscriber represents and warrants that it and any such third party as provided for in this Section, has all rights, consents, and authority necessary to provide and permit use of such Subscriber Business Data.
‍ - Once Subscriber Data has been received by Flyntlok and input into the Software, any subsequent modifications, changes or corrections to the Subscriber Data made by or on behalf of Subscriber shall be Subscriber’s responsibility, and to the extent any such modifications, changes or corrections violate the terms of this Agreement or create concerns or issues for Flyntlok in the provision of the Services hereunder, Flyntlok reserves the right to charge Subscriber, at Flyntlok’s standard and customary rates, for the cost of additional modifications, changes or corrections as Flyntlok deems necessary or appropriate to ensure that the Services may be properly provided to Subscriber.
‍ - Subscriber may provide, or may authorize Flyntlok to receive or retrieve on Subscriber’s behalf, data originating from other software platforms, systems, or service providers (collectively, “External Systems”). Subscriber represents and warrants that it has obtained all rights, consents, and authority necessary to permit such access or use of data from External Systems, and that any such access or use by Flyntlok will not violate any applicable laws or regulations, terms, restrictions, or third party rights applicable to such External Systems. Flyntlok shall have no obligation to access any External System on Subscriber’s behalf and may condition any such assistance on receipt of adequate written assurances from Subscriber. Subscriber agrees to indemnify, defend, and hold harmless Flyntlok from and against any claims, liabilities, or losses arising from or related to Flyntlok’s access to or use of data originating from External Systems at Subscriber’s request. Subscriber further acknowledges and agrees that (A) External Systems are controlled and operated by third parties and not by Flyntlok; (B) Flyntlok does not warrant or guarantee the continued availability, accuracy, security, or performance of any External System; and (C) Flyntlok shall have no liability for service interruptions, data loss, delays, security incidents, or errors caused by or originating from any External System.
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- Subscriber shall be solely responsible for providing, either directly or through an authorized third-party, all Subscriber Data and other inputs necessary for Flyntlok to perform the Services. Subscriber represents and warrants that all such Subscriber Data and other inputs will be complete, accurate, and provided in a timely manner. Subscriber further represents and warrants that it has obtained, and will maintain, all necessary rights, permissions, and legally valid consents from all end users and other data subjects for the collection, use, disclosure, and transmission of their personal information to Flyntlok in connection with the Services, and that such provision and use of Subscriber Personal Data complies with all applicable laws and regulations. Subscriber represents, warrants, and covenants to Flyntlok that Subscriber owns, or otherwise has and will have the necessary rights in and relating to the Subscriber Data, so that, as received by Flyntlok, and used in accordance with this Agreement, Flyntlok is not, and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights, of any third party, or violate any applicable law.
- Authorization to Use Third-Party Payment Processors and Third-Party Cash Pay Service Providers. Subscriber authorizes Flyntlok to provide the Services, including collecting and processing payments, rent and other payments due and payable to or by Subscriber by and through third-party payment processors and third-party cash pay service providers, which authorization shall include the right to capture and settle any and all amounts owed to or by Subscriber to Flyntlok or such third-party payment processor or third-party cash pay service provider. In performing such Services, Flyntlok may assign its obligations and delegate its duties and authorities to some or all of its activities and services to third-party payment processors and/or third-party cash pay service providers. If a chargeback of fees or funds is incurred by Flyntlok related to Subscriber’s operations or accounts or the operations or accounts of Subscriber’s customers or Affiliates, Flyntlok shall allocate such chargeback to Subscriber and charge back the accounts of Subscriber for such amounts. Subscriber acknowledges and agrees that (i) in using third-party payment processors and third-party cash pay service providers, funds of Subscriber will be subject to the terms set forth by such third-party payment processors and third-party cash pay service providers and that such funds may be held or retained by such third-party providers in the event of a dispute between such third-party service provider and Subscriber and (ii) Flyntlok shall have no liability or obligation to indemnify or intervene on behalf of Subscriber in the event any funds or amounts are retained or held due to a dispute solely between Subscriber and such third-party provider. Subscriber shall be solely responsible for any fees, fines, penalties, assessments, chargebacks, or other amounts imposed by any payment network, bank, or processor arising from Subscriber’s use of such services, and Subscriber agrees that Flyntlok may debit or invoice Subscriber for any such amounts. Flyntlok and its third-party payment processors reserve the right to delay, suspend, or reject any transaction if Flyntlok reasonably suspects such transaction violates applicable Anti-Money Laundering (AML) laws, sanctions programs (OFAC), or constitutes fraud. Subscriber agrees to cooperate fully with any Flyntlok or regulatory investigation and acknowledges that funds may be held during such investigation without liability to Flyntlok.
‍ - Compliance with Technology and Data Laws.
‍- Third-Party Terms. Certain features or functionalities of the Software may integrate with or rely on services provided by third-party vendors. Subscriber agrees to comply with all applicable third-party terms, conditions, and acceptable use policies (which Flyntlok may amend, update and alter as needed to comply with the terms of such third-party vendors without notice to Subscriber) when accessing or using such integrated services.
‍ - Data Privacy Compliance. Subscriber shall be solely responsible for providing appropriate notices to, and obtaining all necessary consents from, its customers, and end users regarding the collection, use, disclosure, and transfer of their personal information via the Software. Subscriber shall comply with all applicable federal, state, and international data privacy and protection laws governing the processing of personal data, including, where applicable, the California Consumer Privacy Act (CCPA), as amended by the California Privacy Rights Act (CPRA), and similar U.S. state privacy laws, the Personal Information Protection and Electronic Documents Act (PIPEDA) and applicable Canadian provincial privacy laws, the Australian Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs), and the New Zealand Privacy Act 2020, in each case as amended from time to time.
‍ - Export Controls and Sanctions Compliance. Subscriber agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Subscriber represents and warrants that: (A) it is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (B) it is not on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List or Entity List; and (C) it will not access or use the Software in violation of any U.S. export embargo, prohibition or restriction.
‍ - Anti-Money Laundering Compliance. Subscriber agrees to comply with all applicable anti-money laundering laws and regulations and shall not use the Software for any purpose that would violate such laws and regulations. Subscriber represents and warrants that it will
not use the Software in furtherance of any unlawful financial activity.
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- Third-Party Terms. Certain features or functionalities of the Software may integrate with or rely on services provided by third-party vendors. Subscriber agrees to comply with all applicable third-party terms, conditions, and acceptable use policies (which Flyntlok may amend, update and alter as needed to comply with the terms of such third-party vendors without notice to Subscriber) when accessing or using such integrated services.
- Cookies, Analytics, and Tracking Technologies. Subscriber acknowledges that Flyntlok may use cookies, analytics tools, product-usage analytics, and similar technologies (including tools that record user interactions with the Services) to operate, secure, support, and improve the Services. Flyntlok configures such tools to mask or obfuscate sensitive fields so that personal information (including bank account numbers, Social Security numbers, and other sensitive identifiers) is not visible in session replay or analytics recordings. Subscriber agrees that its Authorized Users’ use of the Services may result in the collection of such analytics data.
3.
Flyntlok Intellectual Property Rights; Nondisclosure
- Ownership. All rights, title and interest to (i) Flyntlok Products, including without limitation all source and object code, specifications, designs, processes, techniques, improvements, discoveries and inventions, and any creation or derivative of, or improvement, addition, update, or modification to Flyntlok Products by Flyntlok or any third-party under this Agreement or any amendment to it, including without limitation all copies and portions thereto, whether made by or under the direction of Flyntlok or Subscriber and (ii) the Usage Data (collectively, the “Flyntlok Intellectual Property”) shall be and remain the property of Flyntlok. Subscriber shall acquire no rights, title, or interest in or to the Flyntlok Intellectual Property except the limited license rights expressly set forth in this Agreement. For the avoidance of doubt, to the extent any right, title, or interest in any Flyntlok Intellectual Property vests in Subscriber by operation of law or otherwise,
Subscriber hereby irrevocably assigns to Flyntlok all such right, title, and interest. Any unauthorized use, modification, duplication, or disclosure of the Software or Services shall be deemed a material breach of this Agreement. To the extent that Subscriber’s employees, agents or contractors participate in the creation of any aspect of Flyntlok Products under this Agreement, Subscriber hereby assigns all right, title, and interest in, including any intellectual property rights to such information, such as copyrights, inventions, ideas, discoveries or other information provided to Flyntlok under the Agreement.
‍ - Proprietary Rights. As between Flyntlok and Subscriber, all right, title and interest in and to the Flyntlok Products, including inventions whether or not patentable or patented, creative works whether or not registered as copyrights, trade secrets, trade names, and any and all intellectual property rights related thereto, is and shall remain the exclusive property of Flyntlok. All other rights with respect to the Flyntlok Products, whether now existing or which may hereafter come into existence are expressly reserved by Flyntlok.
‍ - Licenses.
‍- Subscriber Data and AI License. As between Flyntlok and Subscriber, Subscriber is and will remain the sole and exclusive owner of all right, title and interest in and to any Subscriber Data in the form originally provided to Flyntlok in accordance with this Agreement. Subscriber grants Flyntlok a worldwide, perpetual, irrevocable, sublicensable, transferrable, and royalty-free license to use, copy, modify, and create derivative works from Subscriber Data for the purposes of: (A) providing the Services; (B) improving, maintaining and supporting Flyntlok’s products and services; (C) developing new products and services; (D) generating anonymized and aggregated data from Subscriber Data that has been deidentified, aggregated or otherwise processed to remove or obscure identifying info such that it does not reasonably identify a particular individual or entity (“Aggregated Data”); (E) combining Subscriber Data with data from other sources to create aggregated datasets; (F) training, tuning, and improving artificial intelligence and machine learning models, including the use of Aggregated Data and (G) any lawful commercial purposes or general business operations, other than the sharing or sale of personal data. Subscriber explicitly grants Flyntlok the right to use Subscriber Data and Aggregated Data for the purpose of developing new products and services and any lawful purpose, including to train, tune, and improve artificial intelligence and machine learning models. Flyntlok owns all right, title, and interest in such Aggregated Data and AI models. To the extent Subscriber has any intellectual property rights in or to the Aggregated Data, Subscriber hereby grants to Flyntlok a non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), assignable, worldwide, royalty-free and fully paid license to reproduce, distribute, modify, and otherwise use and display the Aggregated Data for any and all purposes. For the avoidance of doubt, “Aggregated Data” does not include Subscriber Data or Confidential Information.
‍ - Usage Data. Subscriber understands and agrees that the Software and the Services generate usage and operational data, including metadata, telemetry, object definitions, and performance information (“Usage Data”). Usage Data does not include or constitute Subscriber Data. Subscriber agrees that Flyntlok shall own all Usage Data pursuant to Section 3.a. Flyntlok agrees that any disclosure of Usage Data shall only be made in a manner as to not identify Subscriber or its Authorized Users.
‍ - Feedback. Subscriber grants Flyntlok a worldwide, perpetual, irrevocable, transferrable, sublicensable, royalty-free license to use, copy, modify, incorporate, exploit and create derivative works from any and all voluntary feedback and Subscriber recommendations, whether written or oral (collectively, “Feedback”) with respect to the Software and the Services, without restriction or obligation, including but not limited to the purpose of: (A) providing the Services; (B) improving, maintaining and supporting Flyntlok’s products and services; (C) developing new products and services; (D) training, tuning, and improving artificial intelligence and machine learning models and (E) any lawful commercial purposes or general business operations, other than the sharing or sale of personal data. Flyntlok owns all right, title, and interest in such AI models. Flyntlok has the right, but not the obligation, to use Feedback in any way without attribution, accounting, compensation, or other obligation to Subscriber. Subscriber acknowledges that any Feedback is provided voluntarily and without expectation of compensation or confidential treatment.
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- Subscriber Data and AI License. As between Flyntlok and Subscriber, Subscriber is and will remain the sole and exclusive owner of all right, title and interest in and to any Subscriber Data in the form originally provided to Flyntlok in accordance with this Agreement. Subscriber grants Flyntlok a worldwide, perpetual, irrevocable, sublicensable, transferrable, and royalty-free license to use, copy, modify, and create derivative works from Subscriber Data for the purposes of: (A) providing the Services; (B) improving, maintaining and supporting Flyntlok’s products and services; (C) developing new products and services; (D) generating anonymized and aggregated data from Subscriber Data that has been deidentified, aggregated or otherwise processed to remove or obscure identifying info such that it does not reasonably identify a particular individual or entity (“Aggregated Data”); (E) combining Subscriber Data with data from other sources to create aggregated datasets; (F) training, tuning, and improving artificial intelligence and machine learning models, including the use of Aggregated Data and (G) any lawful commercial purposes or general business operations, other than the sharing or sale of personal data. Subscriber explicitly grants Flyntlok the right to use Subscriber Data and Aggregated Data for the purpose of developing new products and services and any lawful purpose, including to train, tune, and improve artificial intelligence and machine learning models. Flyntlok owns all right, title, and interest in such Aggregated Data and AI models. To the extent Subscriber has any intellectual property rights in or to the Aggregated Data, Subscriber hereby grants to Flyntlok a non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), assignable, worldwide, royalty-free and fully paid license to reproduce, distribute, modify, and otherwise use and display the Aggregated Data for any and all purposes. For the avoidance of doubt, “Aggregated Data” does not include Subscriber Data or Confidential Information.
- Flyntlok Intellectual Property Protection. Subscriber shall not itself nor shall it permit any other party to: (i) disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code, object code, or underlying structure, ideas, know-how, or algorithms for any part of the Services or Software; (ii) adapt, modify, or prepare derivative works or inventions based on any portion of the Software; (iii) use any portion of the Software to create any computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the Services or Software (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any of the Services or Software to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service, or otherwise provide the Services or the Software for the benefit of a third party; (v) use the Services or the Software in any manner that violates applicable law, including in connection with the delivery or transmission of unsolicited messages (commercial or otherwise) or spamming that is in violation of applicable laws; (vi) input any data into the Services or Software that Subscriber is not authorized to share under applicable law or Subscriber’s own obligations to third parties; (vii) use the Services or Software to create, store, or distribute any content that is unlawful, fraudulent, defamatory, harassing, threatening, or that violates any third party’s rights; (viii) transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, trade secret, or right of publicity and privacy; (ix) access or use the Services or Software for purposes of competitive analysis, benchmarking, the development or provision of a competing product or service, or any other purpose that is to Flyntlok’s detriment or commercial disadvantage, as determined by Flyntlok in its sole discretion; (x) remove any proprietary notices or labels; (xi) otherwise access or use the Services or Software beyond the scope of the authorization granted under this Agreement; (xii) use any data obtained from or through the Services or Software, including any outputs, reports, analytics, or other materials generated by the Services or Software, to train, fine-tune, validate, or otherwise develop any artificial intelligence model, machine learning model, neural network, or similar technology, whether owned by Subscriber or any third party, without Flyntlok’s prior written consent; (xiii) access or interact with the Services or Software using any artificial intelligence agent, automated tool, or similar technology, except as expressly permitted by Flyntlok in writing or through features made available within the Services or Software; (xiv) use any robot, spider, scraper, or other automatic device, process, or means to access the Services or Software, or to scrape or mine the Services or Software; (xv) engage in “screen scraping,” “database scraping,” or harvesting of any information or data (including email addresses, IP addresses, or other personal information); (xvi) access the Services or Software using means to mask, rotate, spoof, or otherwise obscure the user’s IP address or identity; (xvii) publish or disclose to any third party any performance data, benchmarks, or results of any testing or evaluation of the Services or Software without Flyntlok’s prior written consent; or (xviii) by any means sell, transform, translate, assign, pledge, mortgage, encumber, make available to any third party, or otherwise dispose of any Flyntlok Intellectual Property or any of the rights or obligations granted or imposed on Subscriber hereunder. For the avoidance of doubt, in no event shall this Agreement, or any rights or privileges hereunder, be an asset of Subscriber under any bankruptcy, insolvency, or reorganization proceedings, or in any other manner whatsoever; provided, however, this Agreement and the transactions provided for herein shall be binding upon and inure to the benefit of the parties, their legal representatives, and permitted transferees, successors, and assigns.
‍ - Nondisclosure. Subscriber acknowledges that the Software, the Services, the terms of this Agreement, and other information provided by Flyntlok to Subscriber represent Confidential Information of Flyntlok and the source code that underlies the Software is a Trade Secret owned by Flyntlok. Each party agrees with the other: (i) to hold the Confidential Information in the strictest confidence; (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information to any third-party, subject to the provisions of subsection (iv) below; (iii) not to make use of the Confidential Information other than for the permitted purposes under this Agreement; and (iv) to disclose the Confidential Information only to their respective representatives requiring such material for effective performance of this Agreement and who have undertaken a written obligation of confidentiality and limitation of use consistent with this Agreement. For the avoidance of doubt, neither party may use Confidential Information except in accordance with this Agreement. Confidential Information shall not include information which (1) is already known to the receiving party free of any restriction at the time it is obtained from the disclosing party; (2) is subsequently learned by the receiving party from an independent third-party free of any restriction and without breach of this Agreement; (3) is or becomes publicly available through no wrongful act of either party; or (4) is required to be disclosed pursuant to a requirement of a governmental agency or law so long as the parties provide each other with timely written prior notice of such requirements. Each party hereto shall institute internal operating procedures to assure limited access and use of Confidential Information consistent with this Agreement and shall exercise due care to monitor and ensure compliance with this Agreement. Subscriber (y) acknowledges that Flyntlok will not accept any Trade Secrets without written consent prior to receipt and (z) agrees not to provide any Trade Secrets without such prior written consent of Flyntlok. Subscriber agrees that any information provided by Subscriber not in accordance with the preceding sentence shall be deemed Confidential Information and not a Trade Secret.
‍ - Remedies. The parties acknowledge that, in the event of a breach of any or all of Sections 3(a), 3(b), 3(c), 3(d) and 3(e), by either party, the other party will likely suffer irreparable damage that cannot be fully remedied by monetary damages. Therefore, both parties agree that either party shall be entitled to seek and obtain injunctive relief against any such breach in any court of competent jurisdiction and terminate this Agreement immediately upon written notice to the other party. The rights of either party under this section shall not in any way be construed to limit or restrict the right to seek or obtain other damages or relief available under this Agreement or applicable law.
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4.
License
Upon timely and complete payment by Subscriber of associated Licensed Products fees (“License Fees”), Flyntlok grants Subscriber a nonexclusive, nontransferable, non-sublicensable, limited license (“License”) to use the Software in connection with Subscriber’s own internal business operations and subject to the terms and conditions of this Agreement, including the provisions of Subscription Summary and the following:
- Use Limited to Subscriber’s Own Operations. This license permits Subscriber to use Licensed Products solely for its own internal business operations. Unless otherwise agreed to in advance in writing, Subscriber acknowledges and agrees that Subscriber shall not lend, rent, lease, license, or permit third-parties including any non-wholly owned affiliates of Subscriber, to use or access the Software. For the avoidance of doubt, Subscriber agrees to limit access to the Software to employees or agents of Subscriber who are wholly under the direct supervisorial control of Subscriber. Subscriber may grant third-party access to Sparks, but Subscriber is wholly responsible for the usage by such third parties, and Flyntlok may limit or suspend Subscriber’s access at any time, and without warning, if a third party, in Flyntlok’s reasonable opinion has misused any access they are given by Subscriber. Subscriber agrees that Flyntlok will not provide any direct support or assistance to any Sparks users unless that Sparks user is also an employee of Subscriber. Flyntlok agrees to support Sparks as part of requests made by Subscriber. Flyntlok is not liable to any Sparks users for errors or losses experienced by the Sparks users. In the event that any third-party suffers loss, damage, or any other harm related to their use of the Sparks system, the Subscriber who provided access agrees to indemnify and hold harmless (such indemnification to include reasonable attorney’s fees and court costs) Flyntlok for any such claim or damage, provided such loss, damage, or harm was not directly caused by Flyntlok’s gross negligence or willful misconduct.
‍ - No Sub-License. Subscriber agrees that it shall not sub-license any of the rights granted herein.
‍ - Suspension of Services. Except as otherwise expressly set forth in this Agreement, Flyntlok may, in its sole discretion, suspend Subscriber’s access to all or any portion of the Services, effective immediately and without prior notice, if Flyntlok reasonably believes that (i) Subscriber is in material breach of any term or condition of this Agreement, including any failure to make a payment when due; (ii) Subscriber’s use of the Services poses a security risk to the Services, Flyntlok’s infrastructure, or any other customer of Flyntlok; (iii) Subscriber’s use of the Services may subject Flyntlok or any third party to liability; (iv) Subscriber’s use of the Services exceeds reasonable and documented usage limits that are necessary to maintain the integrity, security, or performance of the Services, and such excess use (A) materially degrades or threatens to degrade the Services or Flyntlok’s systems or infrastructure, or (B) constitutes malicious, abusive, or fraudulent activity, including attempts to circumvent technical controls, exploit vulnerabilities, or engage in automated or abnormal usage patterns inconsistent with ordinary business use; (v) suspension is required or requested by applicable law, regulation, or governmental authority; or (vi) Subscriber’s data, content, or use of the Services is the subject of a third-party claim of infringement, misappropriation, or other violation of such third party’s rights.
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5.
Responsibilities Related to Third Party Services or Embedded Services
Licensed Products may utilize or integrate with Third Party Services or Embedded Services requested by Subscriber.
- Whereas certain Third Party Services are requested by or on behalf of Subscriber and are being resold by Flyntlok, Subscriber agrees that Subscriber shall be solely responsible for the obligations of such services including all fees related to such Third Party Services for which Flyntlok will invoice Subscriber as per the Subscription Summary. Subscriber understands and agrees that such third-party vendors control their own systems, networks, data processing activities, and service availability, and that Flyntlok does not warrant or guarantee the performance, accuracy, or continued availability of any Third Party Service. Subscriber acknowledges that Flyntlok shall be principally responsible for the technical integration of such Third Party Services, and Subscriber agrees to abide by and accept any terms of use imposed by such Third Party Services. Subscriber shall indemnify and reimburse Flyntlok for any costs associated with such Third Party Services. If Subscriber fails to pay for agreed upon Third Party Services or to adhere to the terms of use by such Third Party Services, Flyntlok reserves the right to discontinue any integration with such Third Party Services and Subscriber agrees to hold Flyntlok harmless for any damages incurred due to the discontinuation of such Third Party Services. Any Third Party Services terms shall control only as to your use of the Third Party Services covered by those third party terms, and the terms of this Agreement will continue to control in all other respects with respect to the Flyntlok Products and Services. Flyntlok shall have no liability or responsibility to Subscriber or any third party arising out of or relating to (i) any suspension, termination, or restriction of any third-party’s services; (ii) any modification of, or update to, such third-party services or terms; (iii) any security incident, data breach, or unauthorized access occurring within or through such third-party’s systems; or (iv) any requirement imposed on Subscriber under any applicable third-party terms, which may or may not be attached hereto. For clarity, nothing in this Agreement shall expand Flyntlok’s obligations or liability beyond those expressly set forth in its direct agreement with a third-party vendor and any remedies relating to a third-party vendor’s services or conduct shall be solely between Subscriber and such third-party vendor.
‍ - Subscriber agrees to adhere to any terms of use by any optional Embedded Services utilized by Subscriber as detailed in the Subscription Summary. Any Embedded Services terms shall control only as to your use of the Embedded Services covered by those third party terms, and the terms of this Agreement will continue to control in all other respects with respect to the Flyntlok Products and Services.
6.
AI Tools
Subscriber acknowledges that the Software and the Services may include features that use artificial intelligence or automated tools to generate various requested outputs and content (“AI Tools”). All references to the Services will include any such AI Tools. Subscriber’s access and use of the AI Tools is subject to compliance with this Agreement and any other documentation, guidelines, or policies provided by Flyntlok. The quality, accuracy, and completeness of any content or materials generated through any AI Tools (“AI Output”) is highly dependent on many factors, including the nature and quality of the content and materials (“Inputs”) used to generate those AI Outputs. Flyntlok cannot and does not guarantee the generation of AI Outputs by any AI Tools. Flyntlok expressly reserves a worldwide, perpetual, irrevocable, transferrable, sublicensable, royalty-free right to use, copy, modify, incorporate, exploit and create derivative works from any and all AI Output for the purposes of: (i) providing the Services; (ii) improving Flyntlok’s products and services, including training, tuning and improving artificial intelligence and machine learning models; (iii) developing new products and services; (iv) generating Aggregated Data; and (v) any lawful commercial purposes or general business operations. Subscriber acknowledges and agrees that AI Outputs from the AI Tools are created based on patterns, data, and instructions provided to the AI Tool which may result, in the possibility that AI Outputs may resemble or be identical to AI Outputs provided to others using the Services. AI Outputs may not be subject to intellectual property protection. Subscriber’s right in content or materials that comprise AI Outputs may not be enforceable. Due to the nature of artificial intelligence and machine learning technology, AI Tools may produce AI Outputs that are inaccurate, incomplete, non-compliant, or offensive or inappropriate content, or fail to meet Subscriber expectations, and such AI Outputs may not comply with applicable legal requirements. All AI Outputs are for information purposes only, and Flyntlok is not responsible for any errors or omissions in any AI Outputs. Subscriber is solely responsible for reviewing, editing, verifying, and approving all AI Outputs prior to use, and for ensuring such content complies with all applicable laws. Subscriber should not rely on any AI Output for legal, professional, regulatory, compliance, or other purposes without independently verifying the applicability and suitability of those AI Outputs to Subscriber’s intended use. Subscriber is solely responsible for all Inputs and Subscriber’s use of AI Outputs. Subscriber will not mislead anyone as to the origin of any AI Outputs, including that any AI Output was human generated. Subscriber will ensure that all Inputs, as well as the use of all AI Outputs, does not infringe or violate any third-party rights and otherwise complies with all applicable laws. Flyntlok disclaims all liability arising out of or related to Subscriber’s use of or reliance on AI Tools. Subscriber will not use any AI Output or AI Tool to develop, train, or improve other artificial intelligence models provided. Subject to the foregoing, Subscriber has the right to use any AI Output in accordance with the Agreement.
7.
Termination
Upon the termination of this Agreement for any reason: (i) the License granted in Section 4 herein shall immediately terminate; (ii) all rights granted by Flyntlok herein shall automatically revert to Flyntlok; (iii) Subscriber shall immediately cease from using the Flyntlok Products; and (iv) Subscriber shall immediately pay all amounts due Flyntlok pursuant to this Agreement. The termination or expiration of this Agreement shall not relieve Subscriber of any obligation that by its nature is intended to survive termination, including but not limited to: Sections 3, 4, 6, 12, and 13. Upon any termination and upon written request by Subscriber, Flyntlok will make all Subscriber Data available to Subscriber for electronic retrieval for a period of thirty (30) days after termination, but thereafter Flyntlok may, but is not obligated to, delete stored Subscriber Data. For the avoidance of doubt, Subscriber Data subject to retrieval shall not include any Aggregated Data, Usage Data or Feedback. Subscriber further agrees that Flyntlok will not be liable to Subscriber or to any third party for any termination of its or their access to the Services or deletion of its or their data. After the expiration of the applicable retrieval period, Flyntlok may permanently delete some or all Subscriber Data from its systems and backups, and shall have no obligation to retain or recover such data. Nothing in this Section requires Flyntlok to delete information it is legally permitted or required to retain, including transaction records or information needed to comply with obligations to payment processors, third-party service providers, or internal document and record retention policies. Flyntlok will reasonably cooperate with Subscriber in responding to valid consumer deletion or access requests submitted to Subscriber, provided that Flyntlok is not exempt from compliance with such requests as provided under applicable privacy laws. This agreement can be terminated as follows:
- By Subscriber. Subscriber shall have the option to terminate this Agreement at the end of the Initial Term of this Agreement or any Renewal Term hereof by giving notice to Flyntlok at least ninety (90) days prior to end of the Initial Term of this Agreement or any Renewal Term hereof.
‍ - By Flyntlok. Anything in this Agreement to the contrary notwithstanding, Flyntlok shall have the right to terminate this Agreement at any time upon thirty (30) days prior written notice to Subscriber and Flyntlok shall have no further obligation to Subscriber.
8.
Early Termination
In the event of the early cancellation or termination of this Agreement by the Subscriber, Flyntlok may: (i) retain all fees collected for work already performed without further obligation and/or liability to the Subscriber; (ii) cease performance of work described in the Subscription Summary without further obligation and/or liability to the Subscriber; (iii) declare all amounts owed to it for work conducted up to the termination date to be immediately due and payable; and (iv) declare all License Fees due through the remainder of the Term owed and to be immediately due and payable.
- Termination Due To Insolvency.  If either party: (i) commences or becomes the subject of any case or proceeding under the bankruptcy, insolvency or equivalent laws of any country; (ii) has appointed for it or for any substantial part of its property a court-appointed receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official; (iii) makes an assignment for the benefit of its creditors; (iv) defaults on any secured obligation; (v) fails generally to pay its debts as they become due; or (vi) takes corporate action in furtherance of any of the foregoing (collectively, herein referred to as “Events of Insolvency”), then, in each case, the party experiencing such an Event of Insolvency shall immediately give notice of such event to the other party. Whether or not such notice is given, the other party shall have the right, to the fullest extent permitted under applicable law, following the occurrence of any Event of Insolvency and without prejudice to any other rights it may have, at any time thereafter to terminate this Agreement, effective immediately upon giving notice to the party experiencing such an Event of Insolvency.
‍ - Termination in the Event of a Material Breach. In addition to the specific termination provisions of this Agreement, either party may terminate this Agreement at any time in the event of a material breach of the terms herein by the other party, if such party shall fail to cure such material breach within thirty (30) days’ of notice of such breach; provided, however, if the breach by Subscriber is critical to the Services or the Services or is determined to be uncurable by Flyntlok, in its sole and reasonable discretion, Flyntlok may terminate this Agreement and the Subscription Agreement with immediate effect. Any such writing which gives notice of such termination for a material breach must have reasonably specific information in it so that the party receiving notice of such breach has a reasonable opportunity to cure such breach before the contract is terminated. For the avoidance of doubt, service interruptions described in Section 1 shall not constitute a material breach by Flyntlok.
9.
WARRANTY AND DISCLAIMER.
- Flyntlok’s Warranty Obligations. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR ESTABLISHED BY APPLICABLE LAW AS RIGHTS THAT CANNOT BE WAIVED OR LIMITED BY CONTRACT, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND FLYNTLOK DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) AS TO ANY MATTER INCLUDING MERCHANTABILITY, TITLE, INFRINGEMENT, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. FLYNTLOK DOES NOT WARRANT THE PERFORMANCE OR RESULTS THE SUBSCRIBER OR ANY THIRD PARTY MAY OBTAIN BY USING ANY SERVICE OR DELIVERABLE WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR THAT ANY SERVICE OR DELIVERABLE WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, ERROR FREE OR, AS APPLICABLE, PRODUCE UNINTERRUPTED FUNCTION. FLYNTLOK FURTHER DISCLAIMS ANY WARRANTY RELATING TO THE AVAILABILITY, PERFORMANCE, ACCURACY, OR SECURITY OF ANY EXTERNAL SYSTEMS, THIRD-PARTY SERVICES, OR AI TOOLS, AND SUBSCRIBER’S USE OF SUCH FEATURES IS AT SUBSCRIBER’S SOLE RISK.
‍ - ACKNOWLEDGEMENT OF NON-ERROR FREE OPERATION. SUBSCRIBER ACKNOWLEDGES THAT ERRORS MAY EXIST OR COME TO EXIST WITH USE OF FLYNTLOK PRODUCTS, AND SUBSCRIBER ASSUMES THE RISK OF ANY DELAYS, ERRORS OR OMISSIONS THAT MAY BE ASSOCIATED WITH SUBSCRIBER’S USE OF FLYNTLOK PRODUCTS. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT FLYNTLOK SHALL NOT BE HELD LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES THAT MAY RESULT FROM SUBSCRIBER’S USE OF ANY FLYNTLOK PRODUCT, PRODUCTS, SERVICES OR AI TOOLS, INCLUDING WITHOUT LIMITATION LOSS OF DATA, DELAYS IN RECEIVING OR TRANSMITTING MESSAGES OR FILES, OR ERRORS IN DATA OR FILE COMMUNICATION, WHETHER OR NOT CAUSED BY THE FLYNTLOK PRODUCTS, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT THAT PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
‍ - THIRD PARTY CONTENT. FLYNTLOK PRODUCTS MAY INTERFACE, UTILIZE OR OPERATE IN CONJUNCTION WITH THIRD PARTY SUPPLIERS OF INFORMATION AND/OR SERVICES (“THIRD PARTY CONTENT”). FLYNTLOK SHALL NOT BE CONSTRUED AS A PUBLISHER OR PRODUCER OF SUCH CONTENT. ANY USE OF SUCH CONTENT THAT MAY BE ASSOCIATED WITH FLYNTLOK PRODUCTS OR SERVICES SHALL NOT BE CONSTRUED AS AN ENDORSEMENT OF SUCH CONTENT BY FLYNTLOK. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT ALL INFORMATION AND THIRD PARTY CONTENT THAT IS MADE AVAILABLE THROUGH OR USED WITH FLYNTLOK PRODUCTS ARE PROVIDED “AS IS” AND FLYNTLOK DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY SUCH INFORMATION OR THIRD PARTY CONTENT, NOR ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY CONTENT IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY CONTENT.
10.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, FLYNTLOK AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND FLYNTLOK’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS DIRECTLY RESULTING FROM DAMAGES CAUSED BY FLYNTLOK THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY SUBSCRIBER TO FLYNTLOK FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FLYNTLOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.
Indemnification.
- By Subscriber. Subscriber shall indemnify, defend, and hold harmless Flyntlok (including Flyntlok’s affiliates, successors, officers, directors, employees and representatives) against any third party actions, claims, demands, costs (including reasonable attorneys’ fees) or damages arising from or relating to (i) Subscriber’s or its end user’s use of the Flyntlok Products, including without limitation claims by customers, vendors, third-party relations of Subscriber, (ii) any Subscriber Data, including Flyntlok’s access or use, (iii) the gross negligence or willful misconduct of Subscriber or its end users, (iv) Subscriber’s or its end user’s failure to comply with applicable law, (v) breach of this Agreement; (vi) Subscriber’s failure to comply with Subscriber’s obligations under any and all laws, rules or regulations applicable to Subscriber or any customer of a Subscriber under this Agreement; or (vii) Subscriber’s use, distribution or disclosure of AI Tools or AI Outputs.
‍ - By Flyntlok. Flyntlok shall indemnify, defend, and hold harmless Subscriber (including Subscriber’s affiliates, successors, officers, directors, employees and representatives) for any claims or liabilities directly arising out of any third party claim that the Flyntlok Products, strictly as provided by and used solely in accordance with this Agreement, infringe a third party’s United States intellectual property rights; provided, however, that Flyntlok shall have no liability or obligation to Subscriber hereunder for any infringement arising from (i) Subscriber Data, (ii) use of the Flyntlok Products in combination with any hardware, system, software, network, or other materials or services not provided by Flyntlok, or expressly authorized by Flyntlok in writing, (iii) modification of the Flyntlok Products other than by or on behalf of Flyntlok or expressly authorized by Flyntlok in writing, (iv) if Subscriber is in material breach of this Agreement, (v) Subscriber’s use of the Software outside the scope of this Agreement; provided, however, that Flyntlok’s indemnification obligations shall not apply to the extent such claims arise from Subscriber’s negligence, willful misconduct, or breach of this Agreement, (vi) AI Tools or AI Outputs, or, (vii) if Subscriber fails to notify Flyntlok within ten (10) business days of the time in which Subscriber was aware of such claim. Should the Software or any part thereof become, or in Flyntlok’s sole opinion be likely to become, the subject of a claim of infringement or misappropriation, Flyntlok shall, at Flyntlok’s option and expense, either (a) procure for Subscriber the right to continue using the Software, or (b) to replace or modify the Software with a non-infringing version of substantially equivalent function and performance. If neither (a) or (b) above are commercially reasonable, in Flyntlok’s sole discretion, then Flyntlok may terminate the Agreement immediately, and refund Subscriber for any pre-paid unused fees. The foregoing shall be Flyntlok’s sole obligation and Subscriber’s exclusive remedy for any such infringement.
‍ - Procedure. A party seeking indemnification (the “Indemnified Party”) shall give written notice to the other party (the “Indemnifying Party”) within thirty (30) days after becoming aware of any claim for indemnification, provided that failure to give such notice shall not relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual material prejudice by such failure, and in such case, only to the extent of damages resulting from such failure). The Indemnifying Party may assume the defense and control of such claim by providing written notice to the Indemnified Party within fifteen (15) days. If the Indemnifying Party does not assume such defense, the Indemnified Party may control its own defense using counsel of its choice at the expense of the Indemnifying Party. Additionally, notwithstanding the Indemnifying Party’s assumption of defense, if Flyntlok is the Indemnified Party, Flyntlok may elect to control its own defense if it reasonably determines that (i) a conflict of interest exists between the parties with respect to such claim, or (ii) the claim could materially affect Flyntlok’s business operations, reputation, or relationships with other clients. Both parties shall provide reasonable cooperation to each other in connection with any indemnified claim. The party controlling the defense may settle any indemnified claim without the consent of the other party, provided that any such settlement (i) includes an unconditional release of the Indemnified Party and its Affiliates from all liability in respect of such claim, and (ii) does not impose any monetary or continuing non-monetary obligation on the Indemnified Party. Any settlement that does not meet these requirements shall require the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld.
‍ - Cooperation. In connection with any claim or action described in this Section, the party seeking indemnification shall: (i) give the indemnifying party prompt written notice of the claim, (ii) cooperate with the indemnifying party (at the indemnifying party’s expense) in connection with the defense and settlement of the claim, and (iii) permit the indemnifying party to control the defense and settlement of the claim, provided that the indemnifying party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld). Further, the indemnified party (at its own cost) may participate in the defense and settlement of the claim.
‍ - Cost of Litigation. Cost of litigation and enforcing the Agreement shall be borne individually by each party, except and to the extent that either party is severally liable or is obligated to indemnify the other party, either by agreement or by operation of law or equity.
‍ - No Flyntlok Liability. Flyntlok will not be liable to Subscriber for any claim, damage, loss or defect arising from or based upon: (i) any alteration, modification or unauthorized use of the Software by Subscriber or its personnel; (ii) any inaccuracy, incompleteness, or defects in Subscriber Data or other inputs provided by or on behalf of Subscriber, including any and all tax, sales or accounting information; (iii) the compilation of Subscriber Data and submission to Subscriber to the extent such compilation and submission are conducted strictly in accordance with Subscriber’s instructions and the terms hereof; (iv) disputes between Subscriber and third-parties engaged by Subscriber in connection with the Services, including through the Flyntlok platform, or any failure of performance by such third-parties; (v) disputes between Subscriber and the end-users of Subscriber’s services and products; (vi) actual or alleged breaches of Subscriber Data arising from Subscriber’s failure to comply with applicable law, or its negligence, willful misconduct, or breach of this Agreement or (vii) except with respect to Flyntlok’s obligation to maintain at all times during the term of this Agreement all of the rights necessary to provide the Services and perform all of its obligations hereunder, any other cause beyond the control of Flyntlok or its Affiliates. Without limiting the foregoing, Flyntlok shall have no liability for any decision, action, or omission taken by Subscriber based on AI Tools, or for any error, interruption, or incident arising from External Systems or third-party services.
‍ - Risk Allocation. The parties expressly agree that this Agreement reflects the allocation of risks including the limitation of liability described in this Section 11. Any modification of such risk allocations would affect Flyntlok’s fees; and in consideration thereof, Subscriber agrees to such risk allocations.
‍ - Third Party Requests or Claims. This Agreement will not be construed to prevent Flyntlok from disclosing Subscriber Data, Subscriber account information, or other Subscriber information to a third-party, court, or governmental body when required by law or pursuant to a valid court order, subpoena, search warrant, or applicable regulation, provided that Flyntlok: (a) gives reasonable advance notice before making the disclosure, unless prohibited by law or prevented by the timing or nature of the legal process; (b) to the extent legally permissible and commercially reasonable, provides reasonable assistance to Subscriber, at Subscriber’s cost, in any lawful efforts by Subscriber to resist or limit the disclosure of such Subscriber Data or other Subscriber information, provided that such assistance does not require Flyntlok to violate any legal obligation or expose Flyntlok to legal liability; and (c) discloses only that portion of the Subscriber Data or other Subscriber information that is legally required to be disclosed. Subscriber shall reimburse Flyntlok for all reasonable costs and expenses, including attorneys’ fees, incurred by Flyntlok in responding to any such third-party request or legal process, except to the extent such request relates solely to Flyntlok’s own conduct or operations unrelated to Subscriber. Flyntlok shall have no obligation to independently challenge any such legal process on Subscriber’s behalf.
12.
Confidentiality
In connection with the parties’ performance pursuant to this Agreement, the parties acknowledge that they may have access to and/or receive Confidential Information of the other party.
- Exceptions.  Confidential Information does not include information that was already known to the receiving party prior to the establishment of reciprocal confidentiality obligations and that can be supported by or is evident from the receiving party’s written records. Confidential Information also does not include information that becomes generally available to the public other than as a result of a breach of this Agreement or other unpermitted disclosures, or information that is furnished to the receiving party by a third party who is lawfully in possession of such information and who lawfully conveys that information.
‍ - Restrictions. Each party shall protect the other party’s Confidential Information with at least the same level of care with which that party would protect their own Confidential Information of a similar nature, and shall not, except as permitted pursuant to this Agreement, use, disclose, copy, or allow access to the other party’s Confidential Information without the prior written approval of such party. Each party shall not disclose or permit access to Confidential Information other than to its employees who have a need to know such Confidential Information for purposes of exercising its rights or obligations under this Agreement, and have been informed of the confidential nature of the Confidential Information, and the receiving party’s obligations regarding such Confidential Information, and such employee is bound by written confidentiality obligations at least as protective as the terms of this Agreement. Each party acknowledges and agrees that its obligations with regard to the other party’s Confidential Information shall continue until such time as one of the exceptions identified in subsection (a) of this Section applies to the subject matter in question.
- Disclosure Compelled.  In the event that either party is required by a duly authorized government entity to disclose the other party’s Confidential Information, the party required to make the disclosure shall, to the extent permissible under applicable federal and state laws and regulations, give the other party prompt written notice of such requirement prior to disclosure, make reasonable efforts to disclose the Confidential Information pursuant to a protective order or confidentiality agreement, and cooperate in all respects with the other party in its efforts in connection therewith.
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13.
General
- Waiver Of Breach. A breach of any provision of this Agreement may only be waived in writing by the non-breaching party, and the waiver of such breach shall not operate or be construed as a waiver of any subsequent breach of the same or other provision.
‍ - Severability. If any provision of this Agreement should, for any reason, be held invalid or unenforceable in any respect, the remainder of this Agreement shall be enforced to the full extent permitted by law. A court of competent jurisdiction is hereby empowered to modify the invalid or unenforceable provision to make it valid and enforceable.
‍ - Performance Excused. The parties shall be excused from delays in performing or from any failure to perform hereunder to the extent that such delay or failure results from causes, such as acts of war, pandemic, natural disaster, strike, or unforeseeable loss of internet or phone services, that are beyond the reasonable control of the affected party, provided that, in order to be excused from delay or failure to perform, the affected party must act diligently to remedy such delay or failure. In the event such delay continues for fifteen (15) consecutive days, either party shall have the right to terminate this Agreement.
‍ - Assignment. Subscriber will not assign, delegate or transfer this Agreement or any of its rights and/or obligations under this Agreement by operation of law or otherwise, in whole or in part, without Flyntlok’s prior written consent, which may be withheld in Flyntlok’s sole discretion; provided, however, that in the event of a Change of Control of Subscriber, (i) Subscriber shall provide Flyntlok with prompt, prior written notice of such Change of Control (including reasonable details regarding the acquiring party sufficient to allow Flyntlok to determine whether such acquiring party is a Competitor), and (ii) Flyntlok’s prior written consent shall be required only if the acquiring person or entity is a Competitor of Flyntlok. For purposes of this provision, “Change of Control” means (a) any merger, consolidation, or acquisition involving Subscriber, (b) any sale of all or substantially all of Subscriber’s assets, (c) any transfer, whether in a single transaction or a series of related transactions, of more than 50% of the voting securities or equity interests of Subscriber, or (d) any other change in the power to direct or cause the direction of the management or policies of Subscriber, whether through ownership of securities, by contract, or otherwise and “Competitor” means any person or entity that, at the time of determination, offers, develops, licenses, or provides products or services that are substantially similar to, or competitive with, the Flyntlok Products or Services, including without limitation any software or technology platform primarily focused on dealer management, inventory management, CRM, sales, service, or rental management solutions for equipment dealers or similar industries, as determined in good faith by Flyntlok based on then-current market offerings. Any purported assignment in violation of this Section shall be null and void.
‍ - Bind and Benefit. This Agreement shall bind and benefit the successors and permitted assigns of the parties.
‍ - Notices. Any notice given pursuant to this Agreement is to be in writing and is to be given by personal service, including nationally recognized overnight courier, or by registered or certified first class mail, return receipt requested, postage prepaid to the addresses set forth in the opening paragraph of this Agreement, or as changed through written notice to the other party, or by electronic email to the address(es) specified by the receiving party in accordance with normal procedures and policies established by Flyntlok for providing the same. Notice given by personal service is to be deemed effective on the date it is delivered to the addressee, notice mailed via the USPS is to be deemed effective on the third (3rd) day following its placement in the mail addressed to the addressee, and notice given through electronic mail is to be deemed effective on the first (1st) business day following its delivery to the proper electronic mail address of the addressee, provided notice is confirmed by the addressee.
‍ - Publicity. Flyntlok shall have the right to list Subscriber as a subscriber of the Flyntlok Products. Subscriber may list that they are a customer of Flyntlok. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Flyntlok may, without Subscriber’s consent, include Subscriber’s name and other indicia in its lists of Flyntlok’s current or former customers in promotional and marketing materials.
‍ - Dispute Resolution. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration in this Agreement and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five (5) days of notice from one party to the other of the Dispute, then at the request of either party such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Flyntlok in Austin, Texas. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having proper jurisdiction. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
YOU AGREE THAT YOU WILL PURSUE ANY CLAIM OR LAWSUIT RELATED TO ANY DISPUTE OR OTHERWISE ARISING FROM OR IN ANY WAY RELATING TO THIS AGREEMENT, AS AN INDIVIDUAL OR BUSINESS, AND WILL NOT LEAD, JOIN, OR SERVE AS A REPRESENTATIVE OR MEMBER OF A CLASS OR GROUP OF PERSONS BRINGING SUCH A CLAIM OR LAWSUIT.
THE PARTIES DESIRE TO AVOID THE TIME AND EXPENSE RELATING TO A JURY TRIAL OF ANY DISPUTE. ACCORDINGLY, THE PARTIES, FOR THEMSELVES AND THEIR SUCCESSORS AND ASSIGNS, HEREBY WAIVE TRIAL BY JURY OF ANY DISPUTE. THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS KNOWINGLY, FREELY, AND VOLUNTARILY GIVEN, IS DESIRED BY BOTH PARTIES AND IS IN THE BEST INTERESTS OF BOTH PARTIES.
‍ - Entire Agreement. This Agreement, along with any exhibits, attachments, or addendums, contains the entire agreement between the parties as to the subject hereof. This Agreement supersedes all prior oral and written agreements between the parties as to the subject hereof. All such prior agreements are hereby canceled, including but not limited to any existing license agreements for the Flyntlok Products between the Subscriber and Flyntlok. Â
- Headings. Headings in this Agreement are for the purpose of convenience only. They are not intended to be a material part of the Agreement, and in the event of any conflict between the heading and the text, the text shall govern.
- Independent Contractor. Flyntlok is an independent contractor and nothing in this Agreement is to be construed to create a partnership, joint venture, or agency relationship between Flyntlok and Subscriber.
- Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of The State of Delaware, United States of America without regard to principles of conflict of laws. The parties consent to the federal and state courts of The State of Texas having personal jurisdiction over them.
14.
Definitions
- "Affiliates". means any entity (i) that controls a party; (ii) that is controlled by a party; or (iii) that is under common control with an entity that also controls a party. Control includes direct or indirect control, including any subsidiary, holding company or operating division of the respective party.
‍ - "Authorized Users". means any person authorized by Subscriber to access and use the Software, including, without limitation, Subscriber’s employees, representatives, dealers, brokers, customers, and other service providers who have been provisioned access credentials by Subscriber in accordance with this Agreement.
‍ - "Confidential Information". includes, but is not limited to, this Agreement and the terms hereof, information relating to the intellectual property and business practices of Flyntlok or Subscriber whether or not reduced to writing or other tangible medium of expression, whether or not patented, patentable, capable of trade secret protection, or protected as an unpublished or published work under the United States Copyright Act of 1976 as amended. Intellectual property includes, but is not limited to, information relating to research and development, inventions, discoveries, software, improvements, methods and processes, know-how, compositions, works, concepts, designs, ideas, prototypes, models, samples, writings, notes, custom fields, custom calculations, and patent applications. Business practices include, but are not limited to, information relating to intellectual property, business plans, financial information, products, services, manufacturing processes and methods, costs, sources of supply, strategic marketing plans, advertising plans, subscriber lists, sales, profits, pricing methods, personnel, and business relationships. Flyntlok’s Confidential Information shall specifically include, without limitation, the Flyntlok Products and Services, the instructions thereof, the documentation thereof, the “look and feel” thereof, the algorithms therein, the source code thereof, the screen displays thereof, Aggregated Data, Usage Data, and Feedback.
‍ - "Subscriber Data". means (i) any information provided by or on behalf of Subscriber to Flyntlok under this Agreement that relates to an identified or identifiable natural person, including, without limitation, names, email addresses, phone numbers, and login credentials of Subscriber’s employees, or the personal contact information of Subscriber’s Authorized Users and end-user customers and, end user profile data (“Subscriber Personal Data”) and (ii) information about Subscriber and Authorized User activity, and summaries thereof, generated, developed or created by the interaction and use of the Services or provided by Subscriber or on behalf of Subscriber to Flyntlok in order to receive the Services, and all other information about the user(s) of the Software that is provided directly by a Subscriber or an Authorized User, or that is generated due to Subscriber’s use of the Software or the Services (“Subscriber Business Data”). For clarity, Subscriber Business Data includes but is not limited to information uploaded or transmitted to Flyntlok by Subscriber directly, or by a third party on behalf of Subscriber and/or other external sources, during onboarding or during the course of Subscriber’s use of the Services. (spreadsheets, CSV files, reports, and exports from other systems). Subscriber warrants and represents that it has all rights and permissions, and authority necessary to provide to and permit use by Flyntlok of such information.
‍ - "Trade Secrets". means information that: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
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