Master Subscription Agreement
This Master Subscription Agreement ("Agreement") is made and entered into as of the Order Effective Date of the first Order Form executed between Flip to, Inc. ("Flip.to") and the Customer ("Customer"), described in such Order Form. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT. BY SIGNING AN ORDER FORM OR ACCESSING OR USING SERVICES OF FLIP.TO, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, FLIP.TO'S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CUSTOMER'S ASSENT HERETO.
The terms and conditions of this Agreement shall govern the Services to be provided by Flip.to under any Order Form submitted by Customer and accepted by Flip.to, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. The term "Flip.to" shall include any third parties which are providing third party Services identified in an applicable Order Form. A Definitions section is included at the end of this Agreement. Customer agrees that subscriptions hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Flip.to regarding future functionality or features.
1. Services
Provision of Services. Subject to the terms and conditions of the applicable Order Form, Flip.to will make the Services available to Customer pursuant to and on the terms set forth in this Agreement. Customer agrees that its subscription hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Flip.to regarding future functionality or features. All rights not expressly granted to Customer are reserved by Flip.to and its licensors. Flip.to reserves the right to make changes, modifications and enhancements to the Services from time to time.
Subscription. Services are purchased as subscriptions solely for use by Users for Customer's own business purposes (and, if Customer is a Collaborative Participant or Collaborative Sponsor, for the purposes of the applicable Collaborative as set forth in the related Collaborative Rules) during the subscription period with respect to either the applicable Property or Properties or, if Customer is a Collaborative Sponsor, the Region, in each case as designated on the applicable Order Form. With respect to a Collaborative, to the extent indicated on the applicable Order Form and related Marketing Collaborative Addendum incorporated therein (a "Collaborative Addendum"), a Collaborative Sponsor may also purchase subscriptions for and on behalf of Collaborative Participants, provided that (i) each such Collaborative Participant shall execute, consent to or accept such Joinder or Order Form incorporating the terms of this Agreement and the related Collaborative Addendum, and (ii) any additional Services subscribed for by such Collaborative Participant in excess of those provided pursuant to the Collaborative ("Additional Services") may require an additional Order Form and shall be subject to additional subscription fees to be paid by the applicable Collaborative Participant. Use by or with respect to any other business unit, project, brand, location, visitors bureau, destination marketing organization, marketing cooperative, promotions board, chamber of commerce, attraction or other group affiliation (or related geographic area or region), or service, as identified in the applicable Order Form, or during a period outside of the subscription period set forth in the applicable Order Form, shall require the express approval of Flip.to and may require the delivery and execution of a new Order Form.
Analytics. To the extent a Customer has selected Flip.to's analytics and reporting services in the applicable Order Form and/or the Customer is a Collaborative Participant where the Services relating to such Collaborative include analytics and reporting services, the Services with respect to such Customer will include integrated Flip.to tracking in such Customer's websites and booking engines (such services, "Analytics"). Flip.to will provide technical guidance to Customer and on the proper integration of Analytics into such Customer's websites and booking engines, but it is the responsibility of each Customer to work with Flip.to staff and properly integrate Analytics on their own. The parties understand and acknowledge that Analytics insights (including the accuracy, quality, integrity and usefulness of aggregated data, analysis and results therefrom), greatly depend on proper and complete data collection, and Flip.to will use commercially reasonable efforts to ensure that Analytics data is properly collected and conclusions are as accurate as possible. However, Flip.to cannot guarantee full and proper integration by all parties (such as Collaborative Participants) which are participating in such Analytics, and as a result, insights derived from Analytics might not always be accurate or complete, and conclusions derived from Analytics should be further verified and be treated with caution. Flip.to does not warrant that the results that may be obtained from the Analytics will be accurate or reliable. Flip.to utilizes a third-party Analytics package to collect and store data, and is not responsible for any data mistakenly logged by Customer or for any loss of data outside of Flip.to's reasonable control, and the use of such third-party Analytics package shall be subject to the provisions of Section 1.4 below. Flip.to will use commercially reasonable efforts to guide participating Customer through Analytics integration but will not play an active role with its implementation on customer's websites and booking engines. In rare cases in which a custom implementation is required for integration and Customer desires to engage Flip.to to take an active role with such integration, Flip.to may provide professional services through a new Order Form or SOW (as defined in Section 6 below), in accordance with the provisions of Section 6 hereof, at a rate to be set forth in the applicable Order Form or SOW, for any professional services performed. Flip.to reserves its right to change without notice the way it collects, processes, and reports Analytics data in order to comply with applicable state, federal or international laws.
Aggregated/Anonymous Data. Customer agrees that Flip.to will have the right to obtain and generate aggregate data (including but not limited to technical data and Customer Data) relating to Customer's or its Users', Guests' and/or Participants' use of the Services, excluding any personally-identified data with respect thereto ("Aggregated/Anonymous Data"), and Flip.to may use such Aggregated/Anonymous Data for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Flip.to products and services and to create and distribute reports and other materials). Flip.to shall also have the right to and may combine such Aggregated/Anonymous Data with aggregated and/or de-identified data or information of other customers or users of Flip.to's Services. All right, title and interest in and to the Aggregated/Anonymous Data will be the exclusive property of Flip.to. For clarity, Flip.to will only disclose Aggregated/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Users, Guests or Participants, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for Flip.to's use of Aggregated/Anonymous Data.
Third Party Products; Integration. The Services may implement, be integrated with, work in conjunction with or exchange information with certain third-party products, software, applications or services (including but not limited to booking engine or email marketing systems or Analytics systems or packages), both offline and online, which may or may not be identified on the applicable Order Form. Flip.to does not warrant any such third-party products or services, whether or not such products, software, applications or services are designated by Flip.to as "certified," "validated" or otherwise, and Flip.to specifically disclaims any liability or obligation with respect to any third-party products and services. Flip.to shall not be held responsible for any deliverable to be provided by a third-party vendor, or for any modification, update or upgrade to third-party products, software, applications or services which break any integration with or affect the functionality of the Services or any related systems or networks, provided that Flip.to may, at its election and in its sole and absolute discretion, work with such third-party to restore any affected functionality (subject to the charge of a professional service fee by Flip.to in connection therewith, in accordance with Sections 6 and 11 below, in Flip.to's sole discretion). Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider. In addition, and to the extent that an applicable Order Form includes any third party provider products or services, such products or services may require Customer's separate subscription or its agreement to certain license terms as may be described in the applicable Order Form. For purposes of clarification and not limitation, unless expressly set forth in the Order Form, (i) the cost of any third party product or service shall constitute part of the Fee, and Customer shall be obligated to pay any such costs directly to such third party, and (ii) any integration of any such third-party products into the System and Services may be subject to additional professional service fees payable to Flip.to, in accordance with Sections 6 and 10 below.
2. Limitations on Use
Customer has no right to receive either an object code or source code version of the software comprising the System which operates in the cloud on remote servers. Customer's usage rights are constrained by this Agreement and the Order Form.
Customer may not release to any third party the results of any evaluation of the Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Flip.to. Customer shall not, and will not allow any third party to, (i) provide, lease, lend, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way, except as expressly authorized hereunder; (ii) modify, copy or otherwise reproduce or make derivative works based upon the Services or the Content; (iii) reverse engineer, decompile or disassemble, or otherwise attempt to derive the source code from or structure of the software used in the delivery of the Services; (iv) remove any proprietary notices or labels displayed in the Services or the Content; (v) use the Services for any unlawful purpose; (vi) create Internet "links" to or from the Services or Content, or "frame" or "mirror" any of Flip.to's content which forms part of the Services or Content; or (vii) access the Services in order to build a competitive product or service. For the avoidance of doubt, and subject to the subscription / limitations / restrictions in Section 1 above, nothing in this Section 2 shall be deemed to prohibit Customer from allowing Customer's customers from accessing the functionality of the Services, via interfaces, portal applications and the like, for its internal business purposes with respect to a Property or Region, as applicable. Additionally, Customer shall not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or be in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
3. Order Process
Customer shall order the Services by completing and signing an Order Form. Flip.to shall accept or reject such Order Form within ten (10) days. Each accepted, fully executed Order Form shall be deemed to become incorporated herein by reference as if attached and made an integral part of this Agreement. In the event that Customer's business practices require a purchase order number be issued prior to payment of any Flip.to invoices issued pursuant to an Order Form, then such purchase order number must be provided to Flip.to prior to the Effective Date of such Order Form. Customer's execution and return of applicable Order Form to Flip.to without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to Flip.to or use in connection with the procurement of Services (or any software) from Flip.to will have no effect on the rights, duties or obligations of the parties hereunder, and shall not be binding on or apply to Flip.to, regardless of any failure of Flip.to to object to such terms, provisions or conditions, and all such terms, provisions or conditions are otherwise hereby expressly rejected by Flip.to.
4. Customer's Responsibilities
Customer is responsible for all activity occurring under Customer's User accounts and shall comply with all applicable laws and regulations (whether local, state, federal, non-U.S. or international) in connection with Customer's use of the Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall: (i) notify Flip.to immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to Flip.to immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Flip.to Technology, Services or Deliverable that becomes known or suspected by Customer or Customer's Users; and (iii) not impersonate another Flip.to user or provide false identity information to gain access to or use the Services. Customer shall indemnify and hold Flip.to, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent arising out of or in connection with a claim alleging that the collection or use of the Customer Data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party, provided in any such case that Flip.to (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases Flip.to of all liability and does not adversely affect Flip.to's business or Service); (c) provides to Customer all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
5. Account Information & Data
Flip.to does not own any Customer Data. Customer, not Flip.to, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Flip.to shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of Customer Data not caused by Flip.to. Customer shall be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data. Flip.to's use of Customer Data shall be limited to the purpose of providing the Services to the Customer and for Flip.to to meet its obligations hereunder. As part of the Services and during the Subscription Period, Flip.to makes available to Customer the ability to export a file of the Customer Data. Without limiting the foregoing, Flip.to will also make available to Customer the ability to export de-identified, aggregated information derived from Customer Data to a Collaborative of which it is a Collaborative Participant, and to import de-identified, aggregated information derived from Customer Data and Collaborative Participant Data from any such Collaborative, as and to the extent permitted under the applicable Collaborative Rules. Customer agrees and acknowledges that (i) Flip.to is not obligated to retain any Customer Data for longer than 30 days after termination (or to retain any Collaborative Participant Data for longer than 30 days after termination of services to such Collaborative Participant), and (ii) Flip.to has no obligation to retain Customer Data, and may delete such Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding Fees. Upon termination for cause resulting from an uncured breach, Customer's right to access or use Customer Data or any Collaborative Participant Data immediately ceases, and Flip.to shall have no obligation to maintain or forward such Customer Data.
6. Professional Services
Professional services such as implementation, training, consulting, etc. ("Professional Services") may be included in any Order Form or, with respect to Professional Services outside the scope of this Agreement and the Order Form, pursuant to a separate statement of work ("SOW") signed by Flip.to and Customer. Flip.to shall retain all ownership rights to any and all Deliverables relating to Professional Services, excluding any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable. Subject to any limitations set forth in the applicable Order Form or SOW, Flip.to grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable to the extent necessary to permit Customer to use such Deliverable in connection with the Services during the Subscription Period. Customer acknowledges that nothing in this Agreement shall restrict or limit Flip.to from performing similar services for any third party.
7. Intellectual Property Ownership
The Services are a subscription to a service. Flip.to alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the System, the Services, the Flip.to Technology, the Content, and any Deliverables, including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale or a license and does not convey to Customer or any User any rights of ownership or license in or related to the Services, to any Deliverable, the Flip.to Technology or the Intellectual Property Rights owned by Flip.to. The Flip.to name, the Flip.to logo, and the product names associated with the Services are trademarks of Flip.to or third parties, and no right or license is granted to use them.
8. Campaign Submissions & Campaigns.
User Submissions. Customer, its Guests or other third parties invited by Customer or its Guests ("Participants") may from time to time post or submit photographs, motion pictures, videos, other audio-visual works, graphics, literary works, messages, and/or image files and/or other material or communications ("User Content") for hosting, sharing, and/or publication on publicly accessible or other areas the System. Flip.to does not claim ownership of any such User Content, and the Customer, and not Flip.to, is entirely responsible for all User Content that Customer or any Guest or other Participant uploads, posts, emails, transmits or otherwise makes available via the System. Customer shall provide its own form of release and license to Participants with respect to all User Content (including User Content submitted in connection with any Campaign), to which Customer acknowledges and agrees that the System shall append such language as shall be required by Flip.to from time to time, which language shall be incorporated into and a part of such release and license. Customer shall cause any Participant who submits or posts User Content to warrant and represent to Customer in its release and license that: (a) such Participant owns all rights to the User Content, including, without limitation, the right to reproduce, adapt, publish, and display the User Content; and (b) to the extent User Content depicts any individual, Participant is the individual pictured, or alternatively, that Participant has obtained permission, in writing, from each person appearing in the User Content to grant the rights to the Customer. Customer expressly affirms, represents and warrants that (i) Customer has the legal power, right and authority to, and has obtained from any other Participant, any and all licenses and rights necessary and appropriate to, display the User Content on the System, (ii) Customer has the right to use the User Content for the purpose for which it is being used (including for any Campaign, as applicable), and (iii) without limiting the foregoing, Customer may share such User Content with any Collaborative in accordance with the applicable Collaborative Rules, if any. Customer hereby expressly grants to Flip.to an irrevocable, non-exclusive, transferable, sub-licensable, royalty-free and worldwide license to copy, store, display, adapt, use, create derivative works of, publish and otherwise exploit, in any way, any User Submission posted on the System, to the extent such use is in connection with the direct or indirect promotion, marketing or advertising of, or which otherwise in Flip.to's reasonable discretion affords a direct or indirect benefit to, Customer, its properties or, to the extent applicable, any Collaborative (in accordance with applicable Collaborative Rules).
Campaigns. In the event that Customer conducts a campaign (a "Campaign") using the System and Services or otherwise on the Flip.to platform, Customer shall be responsible for determining and providing its own form of release and Campaign rules, terms, guidelines and conditions ("Official Rules"), and shall ensure that any such Campaign and related Official Rules comply with any and all applicable laws, rules, and regulations. Customer expressly acknowledges that Flip.to is not responsible or liable for Customer's, Participant's or any other third party's compliance or non-compliance with such rules, terms, and conditions or with applicable laws, rules, or regulations. Without limitation of the foregoing, it is the Customer's sole responsibility to determine, cause each Participant to agree to, and enforce the Official Rules for each Campaign and disclose any all information related to the payment of, collection of, handling of, and tax implications and consequences, of any prizes. Any and all disputes arising between Customer and Participants relating to any Campaign will be handled and resolved between Customer and the applicable Participants, without including or naming Flip.to, its employees, agents, contractors, vendors, successors or assigns or any related company as a party to any proceeding, lawsuit, arbitration or other dispute resolution scheme.
9. Indemnification
Customer agrees to indemnify and hold Flip.to, and its managers, members, shareholders, owners, subsidiaries, affiliates, officers, agents, licensors, co-branders, attorneys or other partners, and employees, harmless to the fullest extent allowed by law from any claim or demand, including attorneys' fees, made by any third party due to or arising out of, relating to or regarding (i) the manner in which any Campaign is conducted or (ii) any and all matters relating to User Content or Customer Data submitted to or otherwise made available on the System or to the Service or Flip.to, provided that Flip.to (a) provides prompt written notice of such claim to Customer, (b) grants Customer the sole right to defend such claim (except that Flip.to may engage its own counsel at its own expense), and (c) provides to Customer all reasonable assistance, at Customer's request and at Customer's sole cost and expense. In no event may Customer enter into any third-party settlement agreements which would in any manner whatsoever affect the right of, or bind, Flip.to in any manner to said third party, without the prior written consent of Flip.to.
Flip.to agrees to indemnify and hold Customer, and its managers, members, shareholders, owners, subsidiaries, affiliates, officers, agents, licensors, co-branders, attorneys or other partners, and employees, harmless to the fullest extent allowed by law from any claim or demand, including attorneys' fees, made by any third party due to or arising out of, relating to or regarding Flip.to infringing such third party's intellectual rights (except where such infringement arises from or relates to a modification of the Services by Customer), provided that Customer (a) provides prompt written notice of such claim to Flip.to, (b) grants Flip.to the sole right to defend such claim (except that Customer may engage its own counsel at its own expense), and (c) provides to Flip.to all reasonable assistance, at Flip.to's request and at Flip.to's sole cost and expense. If Flip.to receives information about an infringement or misappropriation claim related to a Service, Flip.to may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching this Agreement, (ii) obtain a license or other right for Customer's continued use of that Service in accordance with this Agreement, or (iii) terminate Customer's subscriptions for that Service upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. If Flip.to terminates a subscription for a Service in accordance with the preceding sentence, Customer shall receive a pro rata refund of any amounts paid in advance for such Service which relate to the period after the effective date of such termination. THIS SECTION 9(b) REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF FLIP.TO AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS.
10. Customer's Third Party Interactions
During Customer's use of the Services, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between Customer and the applicable third-party. Flip.to and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. Flip.to does not endorse any sites on the Internet that may be linked through the Services and to the extent any links are provided by Flip.to, these are provided to Customer only as a matter of convenience, and in no event shall Flip.to or its licensors be responsible for any content, products, or other materials on or available from such sites.
11. Fees, Payment Terms, Taxes & Billing Contact
Fees. Customer shall pay all fees or charges as specified on each executed Order Form and SOW ("Fees"). All payment obligations are non-cancelable and all amounts paid are nonrefundable. Flip.to charges and collects in advance for Implementation Fees and first month usage as defined on each Order Form. Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of Flip.to's invoice, without offsets or deductions of any kind, and payment is due in US dollars. Notwithstanding the foregoing, to the extent Customer is a Collaborative Participant the terms of such Collaborative and the Collaborative Sponsor's Order Form may provide for the payment of applicable Fees by the related Collaborative Sponsor, and to the extent (and only to the extent) thereof, such Collaborative Sponsor shall be solely responsible for the payment of such related Fees (provided that the Customer shall remain directly responsible for Fees relating to any Additional Services subscribed for by such Customer).
Billing and Contact Information. All invoices will be delivered electronically via email to the designated contact located on the Contacts Sheet in accordance with the selected frequency terms on the Order Form. A generic email address specific to the Accounts Payable department, rather than a specific person's address is recommended to ensure receipt of invoice. Customer agrees to provide Flip.to with accurate billing and contact information at all times, including Customer's legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Flip.to reserves the right to terminate Customer's access to the Services in addition to any other legal remedies. Flip.to is not responsible for "undeliverable" or returned emails.
Payment. If payment, under an applicable Order Form, is made via credit card or electronic money transfer (i.e. ACH), such payment is chargeable upon invoice date. In the event that Customer's use of the Services exceeds the committed Transaction Volume, additional Fees shall apply as set forth in the applicable Order Form. Such Fees shall be assessed monthly or on a monthly equivalent basis (for quarterly or annual plans), in arrears. If Customer believes Customer's bill is incorrect, Customer must contact Flip.to in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Overdue Payments. In the event Customer fails to make payments per payment terms as set forth in this Agreement or in any applicable Order Form, and legal enforcement by Flip.to is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by Flip.to. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
Taxes. Flip.to's Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Flip.to's income. If Flip.to has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Flip.to with a valid tax exemption certificate authorized by the appropriate taxing authority.
Increases in Fees; Renewal Subscription Periods. Flip.to reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon the upcoming Renewal Subscription Period by providing Customer written notice at least forty-five (45) days prior to the end of the then current Subscription Period. Additionally, Flip.to reserves the right to increase the fees every twelve months for the Services described herein by no more than the greater of 3% or the annual Consumer Price Index for the latest twelve-month period, as published by the United States Department of Labor. In the event that Customer does not provide notice of termination to Flip.to as described in Section 12 below, such Fee changes shall become effective at the commencement of the next Renewal Subscription Period.
12. Subscription Period; Renewals
The Initial Subscription Period shall begin on the Order Effective Date as set forth on the first Order Form and shall continue in effect until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein. Unless otherwise stated on the Order Form, the Order Effective Date will be the earlier of (x) the Order Effective Date set forth on the signed Order Form or (y) fourteen (14) days after the signed Order Form is returned to Flip.to by the Customer. Unless otherwise set forth in the first Order Form, the Initial Subscription Period shall begin on the Order Effective Date and continue for a period of twelve (12) months following the Order Effective Date. In the event that an Order Form contains Services added to an existing subscription, (i) the existing Services shall be billed on a pro-rated basis through the date of the addition of the added Services, (ii) the existing Services and the added Services shall be billed for the next payment period commencing on the effective date of the addition of the additional Services, and (iii) the then-current Subscription Period will be extended for a period of twelve (12) months from the date of the addition of the additional Services. Unless otherwise set forth in an applicable Order Form, or unless this Agreement is terminated as described in Section 14, upon expiration of the then-current Subscription Period, the applicable Order Form(s) will renew automatically for a subsequent Renewal Subscription Period of twelve (12) months (subject to any Fees adjustment as set forth in Section 11 and subject to Flip.to's current version of this Agreement on the date of renewal), unless either party notifies the other party of its intent to terminate at least thirty (30) days prior to the end of the then-current Subscription Period.
13. Non-Payment & Suspension
In addition to any other rights granted to Flip.to herein or under applicable law, Flip.to reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer's access to the Services if Customer's account becomes delinquent and is uncured for a period of ninety (90) days. In addition, Flip.to has the right to remove any credit terms provided in any Order Form in the event Customer's account becomes delinquent (e.g. net 30 payment terms will be reduced to net 0). Customer will continue to be charged for Fees during any period of Service suspension due to Customer's delinquency. If Flip.to initiates termination of this Agreement under this Section 13 or for cause, as further described in Section 14, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the applicable Subscription Period, including any other fees or payments that Customer has committed to under this Agreement, the Order Form or any SOW. Customer agrees that Flip.to may charge such unpaid Fees to Customer's credit card or via ACH payment, or otherwise bill Customer for such unpaid Fees. Customer understands that Customer's failure to use the Services shall not relieve Customer's obligation to pay Fees throughout the entire Subscription Period.
14. Termination
Termination for Cause. Either party may terminate this Agreement for cause upon the occurrence of any of the following:
The other party is in material default of its obligations and fails to cure default within thirty (30) days after receiving a written notice of default;
Automatically and without notice or right to cure upon the other party being adjudicated as bankrupt; or
The other party ceases its usual operations for three (3) consecutive days (other than due to force majeure or external power failures).
Survival. Sections 6, 7, 9, 11, 13, 16, 18 and 22 shall survive the expiration or termination of the Subscription Period and this Agreement.
15. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into and perform its obligations under this Agreement.
Scheduled and unscheduled interruptions may occur, and Flip.to does not warrant uninterrupted availability of the Services and related systems. Flip.to represents and warrants that the Services will perform substantially in accordance with applicable Order Form(s), and with privacy and accessibility regulations under normal use and circumstances. In the event of a breach of this warranty, Customer's sole remedy and Flip.to's sole obligation will be for Flip.to to make reasonable commercial efforts to correct the non-conformity or, if Flip.to is unable to correct the non-conformity within ninety (90) days after Customer's written notice, for Customer to terminate the applicable Order Form and receive a refund on a pro-rata basis of any prepaid unused Fees under such Order Form.
16. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 15, FLIP.TO AND ITS LICENSORS MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. FLIP.TO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FLIP.TO DOES NOT WARRANT THAT THE SERVICES OR RELATED SYSTEMS (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER'S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FLIP.TO TO ANY THIRD PARTY. FLIP.TO PROVIDES THE SERVICES "AS IS". EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.
17. Internet Delays
FLIP.TO'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FLIP.TO IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY FLIP.TO.
18. Limitation of Liability
IN NO EVENT SHALL FLIP.TO'S AND ITS LICENSORS AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19. Marketing
Customer grants Flip.to the right to use Customer's name, mark and logo on Flip.to's website and in Flip.to marketing materials and press releases, and to identify Customer as a Flip.to Customer; provided, however, that any such use must be pre-approved, in writing by Customer, which approval shall not be unreasonably withheld. Customer further agrees that "Powered by Flip.to" or similar marks may appear in forms, web pages and other outputs of the Services. Upon request, Customer shall provide Flip.to with quotes from Customer's officers to use in Flip.to's marketing materials.
20. Notices
All legal notices (i.e. claimed breach or termination of Agreement or Order Form(s)) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by registered or certified US mail (return receipt requested, postage prepaid) to the other party at the address set forth in the applicable Order Form or as otherwise communicated to the other party in writing. All other notices from Customer to Flip.to may be made by emailing support@flip.to and Flip.to may give notice by emailing Customer's billing contact as specified on the order form. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.
21. Assignment
Customer may not assign this Agreement to any third party except upon Flip.to's prior written consent. Notwithstanding the foregoing, such consent is not required in connection with a sale of all, or substantially all of its assets, or a change of control through stock sale or merger. This Agreement shall be binding on either party's respective permitted successors and assigns. Any attempt to assign this Agreement in violation of this Section is null and void.
22. Confidentiality
Confidential Information. Both Parties agree not to disclose any Confidential Information to any third party during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement. Both parties agree that Confidential Information shall remain strictly confidential and shall not be utilized, directly or indirectly, by either party for his, her or its own business purposes or for any other purpose except as authorized or contemplated herein. Each party will use the same degree of care to protect the Disclosing Party's Confidential Information as such party uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the Disclosing Party's Confidential Information to any person or entity other than the Receiving Party's officers, principals, employees and subcontractors ("Representatives") who need access to such Confidential Information in order to effect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement.
Exceptions. The restrictions set forth in this Section 22 will not apply to any Confidential Information that a Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party; (e) has been approved for release by the Disclosing Party's prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the Receiving Party provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In addition, to the extent that Customer is a Collaborative Sponsor or a Collaborative Participant, the restrictions set forth in this Section 22 shall not apply to the disclosure by Flip.to to the applicable Collaborative, Collaborative Sponsor or Collaborative Participants, to the extent such disclosure is reasonably necessary or appropriate for the performance of the Services relating to such Collaborative (provided that any such Confidential Information so disclosed shall continue to constitute Confidential Information in the possession of any party to which it is so disclosed).
Injunctive Relief. The parties agree that a breach of this Section 22 may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, a Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by a Receiving Party or its Representatives.
Return of Materials. Upon termination or expiration of the Services, at the Disclosing Party's request, the Receiving Party will promptly return or securely dispose of all Confidential Information in its possession or control and certify the same to the Disclosing Party.
Survival. The provisions of this Section 22 shall survive the expiration or termination of the Subscription Period and this Agreement.
23. Acceptance of Agreement, Privacy Policy & Terms of Use; Changes
The Customer is aware of and accepts all of the terms and conditions of this Agreement, Flip.to's Privacy Policy and Terms of Use as listed on Flip.to's website at http://flip.to/privacy and http://flip.to/terms (each of which forms part of this Agreement and are expressly incorporated by reference herein). Flip.to expressly reserves the right to, and may, modify any of the terms and conditions contained in this Agreement, its Privacy Policy and Terms of Use, at any time and from time to time in its sole discretion. Notification to the Customer of any changes by e-mail or posting of a change notice on Flip.to's Website, at Flip.to's sole option, shall be considered sufficient notice to the Customer of a modification. Customer's continued use of Services after such changes or modifications have been made shall constitute acceptance of this Agreement as last revised.
FLIP.TO EXPRESSLY RESERVES THE RIGHT TO AMEND, MODIFY OR CHANGE THIS AGREEMENT FROM TIME TO TIME. SUCH AMENDMENTS, MODIFICATIONS OR CHANGES WILL BECOME EFFECTIVE WHEN FLIP.TO POSTS THE REVISED AGREEMENT AS PART OF THE SERVICE OR ON THE FLIP.TO WEBSITE. THE MOST CURRENT VERSION OF THIS AGREEMENT CAN BE FOUND AT http://flip.to/msa. ANY REVISED AGREEMENT SHALL SUPERSEDE ALL PREVIOUS VERSIONS.
24. General
This Agreement shall be governed by Florida law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Orlando, Florida. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Flip.to as a result of this Agreement or use of the Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein), comprises the entire agreement between Customer and Flip.to regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. No modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Additional Order Forms may be added by reference to this Agreement, provided that each such Order Form is signed by both parties.
25. Force Majeure
Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement, other than for delay in the payment of money due and payable hereunder, if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), commercial impracticability (commercial impracticability meaning business is closed for more than 30 days and/or out of business, embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other cause beyond the reasonable control of such party. Upon written notice, dates by which performance obligations are scheduled to be met, other than for delay in the payment of money due and payable hereunder, will be extended for a period of time equal to the time lost due to any delay so caused. As a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice (prompt written notice is considered to be no more than ten days from the date of cause), with full details following the occurrence of the cause relied upon. Force Majeure applies as of date of notice, and is not retroactive.
26. Definitions
As used in this Agreement and in any Order Form(s) associated herewith:
"Administrator(s)" means those Users designated by Customer who are authorized to submit, whether electronically or in writing, Order Forms and to create Customer accounts and otherwise administer Customer's use of the Services;
"Confidential Information" means any and all information disclosed by either party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with this Agreement, whether or not marked by the Disclosing Party as "confidential" or "proprietary", including but not limited to the terms of this Agreement, the Services or the System, any modifications to the terms and provisions of the Agreement, the Services or the System made specifically for the Customer and not generally available to other subscribers to the Services or the System, business, supplier and financial information, customer and vendor lists, marketing information, research, product plans, products, developments, inventions, process, designs, engineering, formulae, markets, software (including source and object code), hardware configuration, algorithms, any information relating to any other Collaborative Participant, and pricing and sales information, concerning either party or any other subscribers of the Services or the System, or any other information which should reasonably be understood by the Receiving Party to be confidential or proprietary to the Disclosing Party ("Confidential Information"). Confidential Information expressly includes (a) Customer Data, (b) Collaborative Participant Data, (c) all pricing terms offered to Customer under any Order Form, and (d) the Flip.to Technology. Confidential Information shall also include any information that a Disclosing Party designates as confidential during the term of this Agreement. Confidential Information may be disclosed in written or other tangible form (including on electronic or magnetic media) or by oral, visual or other means by either party.
"Content" means the audio and visual information, documents, software, products and services contained in or made available via the Services, other than Customer Data and User Content;
"Collaborative" means any region, group or organization sponsored by a Collaborative Sponsor and with respect to which Customer has made an election to participate on its Order Form and agreed to the applicable Collaborative Rules attached to such Order Form.
"Collaborative Participant" means, with respect to any Collaborative, each customer of Flip.to within the applicable Region which has executed a Participating Subscription and elected to participate in such Collaborative (which Collaborative Participants shall include but not be limited to the Collaborative Sponsor and Customer).
"Collaborative Participant Data" means any data, information or material that a Collaborative Participant or its Users, subscribers or partners may disclose or submit to Flip.to or the Services in the course of using the applicable Services in connection with the Collaborative or pursuant to such Collaborative Participant's Participating Subscription with Flip.to.
"Collaborative Rules" means, with respect to a Customer that has elected to participate in a Collaborative identified on its Order Form, the rules and conditions describing the sharing of Guest and Participant User Content with the applicable Collaborative and its other participants and members, which Collaborative Rules shall be attached to the applicable Order Form.
"Collaborative Sponsor" means any visitors bureau, destination marketing organization, marketing cooperative, promotions board, chamber of commerce, attraction or other group or organization which is the sponsor of a Collaborative and which has entered into a Master Subscription Agreement with Flip.to.
"Customer Data" means any data, information or material that Customer or Customer's Users, subscribers or partners may disclose or submit to Flip.to or the Services in the course of using the Services.
"Deliverables" means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Flip.to (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form and/or SOW, and provided to Customer hereunder.
"Flip.to Technology" means all of Flip.to's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Flip.to in providing the Services.
"Guest" means a Property guest, which shall include (i) any individual or individuals who have made reservations to stay at the Property, (ii) any current guest at the Property, and (iii) any former guest who has completed their stay at the Property.
"Initial Subscription Period" means the initial contracted period specified in the applicable Order Form.
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
"Order Effective Date" means the date identified in an Order Form as the date on which the subscription for Services described in such Order Form shall be effective.
"Order Form(s)" means the form evidencing the initial subscription order for the Services and any subsequent Order Forms (or any addenda or amendments thereto) submitted online or in written form, specifying, among other things, the Order Effective Date, the Property, Transaction Volume, participation in any Collaborative, and/or other services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
"Participating Subscription" means a Master Subscription Agreement or other agreement entered into by a Collaborative Participant with Flip.to evidencing such Collaborative Participant's subscription for Services in connection with its participation and membership in a Collaborative.
"Property" means one or more hotel or resort properties, brands, business units, projects or services identified on the Order Form and with respect to which the subscription set forth in this Agreement relates. To the extent that Customer is a Collaborative Sponsor, Property shall be deemed to include the applicable Region to which the Collaborative relates.
"Region" means the applicable geographic or market area to which a Collaborative relates.
"Renewal Subscription Period" means each subsequent renewal period beginning on the expiration of the Initial Subscription Period;
"Service(s)" means Flip.to's cloud-based collaborative marketing platform identified during the ordering process, including Flip.to's technology, products, application programming interfaces (APIs) developed, operated, and maintained by Flip.to and accessible via http://www.flip.to or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by Flip.to, to which Customer is being granted access under this Agreement, including the Flip.to Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form. Such Services may also include Analytics to the extent set forth in the applicable Order Form.
"System" means all of the Flip.to Technology and Flip.to's Intellectual Property Rights, including all software and hardware used to provide the Services to Customer over the Internet, including application software, Web and/or other Internet servers, any associated offline components, and all updates thereto; and all processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information relating thereto.
"Transaction Volume" means the unique visitor count, or other agreed upon measurement amount, invoiced by Customer using the Services for a specific monthly or other period as identified in the applicable Order Form and is measured by taking the sum of such agreed upon measurement amounts posted using the Services for such monthly or other period.
"User(s)" means Customer's employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by Flip.to at Customer's request).
Effective as of November 11, 2022
Last updated