All users who are minors in the jurisdiction in which they reside (generally
under the age of 18) are not permitted to register for the Website or use the
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS (IF APPLICABLE) AND ALSO BY CONTINUING TO USE THE WEBSITE. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT Flex MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE COMPANY SERVICES OR THE WEBSITE.
1.1 Flex Services. Flex will provide education, tools, resources, and/or a marketplace for practitioners and facilities. Flex hereby grants to Client the limited, non-exclusive, non-sublicensable right to access and use Flex’s website (available at: https://www.FlexMedStaff.com) (“Services”). Client agrees that Flex may modify the Services and the Service Descriptions from time to time, provided that such modifications do not materially adversely affect the Services.
1.2 Services Activation. Following the execution of this agreement Flex shall activate the Services by providing Client with access to an account. Client is responsible for providing Flex with any requested user account data.
1.3 Data Retention. Flex will retain Client Data for the Term of the Agreement, unless Client requests or implements specific retention policies within the Services. Following termination or expiration of this Agreement, Flex will retain the Client Data for a minimum of six (6) months.
Flex services and Flex’s website are provided pursuant to this agreement are complimentary, but Flex and client understand that additional services may be offered at a fee. In the event that Client requests or needs additional services, Flex will offer these additional services at a fee to be determined at a later date or in an amended agreement or contract.
3.1 Client Account. Client shall create an account, and is responsible for ensuring that Client’s account registration information is complete and accurate. Client shall designate at least one authorized user who shall have administrative access to Client’s account, with full access privileges and the authority to place orders (“Authorized User”). The Authorized User is responsible for managing all aspects of the Services, including without limitation, requesting changes or modifications to the Services, adding or removing users, webpages, URL(s), or adding or deleting Users. Client acknowledges and agrees that Flex will only accept such requests from Authorized Users, or a verified officer of Client’s organization. Flex may, in its sole discretion, refuse to comply with any request if the identity of the Authorized User or the officer making any such request cannot be reasonably verified. The Services may only be used by Client’s authorized employees, agents or contractors in the performance of their duties to Client. Client shall notify Flex immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client shall not permit Flex competitors to access the Services for any reason. Client is solely responsible for all activity which occurs within Client’s account and for the actions of its employees, contractors or agents, whether or not such person is or was acting within the scope of their employment, engagement or agency relationship.
Company Content on the Website is provided to you “AS IS” for your information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Provided that you are eligible to use the Website, you are granted a limited license to access and use the Website and the Company Content and to download or print a copy of any portion of the Company Content to which you have properly gained access solely for your personal, non-commercial use. Company reserves all rights not expressly granted to you in and to the Website and Company Content and Marks.
3.3 License to Client Data. “Client Data” means the data of Client which is either (a) transmitted to Flex by or on behalf of Client in connection with the provision of the Services; or (b) collected or received via the Services at the direction of Client. Client hereby grants Flex the limited, non-exclusive right to access, copy, transmit, download, display, and reproduce Client Data as necessary or as otherwise authorized hereunder. Client represents and warrants that Client has all necessary rights in and to the Client Data to grant the foregoing license to Flex.
4.1 Confidential Information. “Confidential Information” means (a) the non-public business or technical information of either party, including but not limited to information relating to either party’s product plans, customers, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (c) the terms of this Agreement; or (d) Client Data. “Confidential Information” will not include information that: (i) is in, or enters, the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independently without reference to the Confidential Information.
4.2 Confidentiality Obligations. Each party agrees that it will not disclose to any third party, or use for its own benefit or the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; and that it will take reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control. Either party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to contest such order or requirement; or to the parties agents, representatives, subcontractors or service providers who have a need to know such information provided that such party maintain the Confidential Information on a confidential basis.
4.3 Remedies. Each party acknowledges and agrees that a breach of the obligations of this Section 4 by the other party will result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by recipient.
As between Flex and Client, all server hardware, software and applications required to operate the Services, and other associated technology or documentation, are the sole and exclusive property of Flex. Except as expressly stated herein, nothing in this Agreement shall serve to transfer to Client any intellectual property right in or to the Services, Software, Flex trademarks or other intellectual property. Flex retains all right, title and interest in and to the Services, Software and the associated technology and documentation. As between Flex and Client, Client Data is the sole and exclusive property of Client and, other than the limited license to Client Data granted in Section 3, nothing in this Agreement shall serve to transfer to Flex any intellectual property right in the Client Data.
6.1 Certain Services offered by Flex may be dependent on third party software, applications, platforms (such as third party social media or business networking platforms), messaging or communication services or API’s (“Third Party Services”). These Third Party Services are not offered, controlled or provided by Flex. In some cases the Third Party Service may make changes to its service, or components thereof, or discontinue a service without notice to Flex. Accordingly, Flex expressly disclaims any liability related to, or arising from, these Third Party Services, including Client’s use thereof, or any updates, modifications, outages, delivery failures, corruptions, discontinuance of services or termination of Client’s account by the Third Party Service. Flex is not responsible or liable for how the Third Party Service transmits, accesses, processes, stores, uses or provides data to Flex. Client is solely responsible for complying with any Third Party Services terms and conditions. In order to integrate the Services with certain Third Party Services, Client may be required to provide Client’s or Client’s end user access credentials for the Third Party Service in order to receive Client Data. In such cases, in order to provide the Service, Flex’s access must be approved (a) by Client for all end users or content; or (b) by each individual end user.
7.1 Term. The Agreement shall commence of the Effective Date and shall remain in effect for the term specified in the Order Form measured from the Activation Date. This Agreement and all purchased Services will automatically renew for additional twelve (12) month terms. The initial twelve (12) month term plus any renewal terms are, collectively, the “Term.”
7.2 Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following the written notice of such breach to the non-breaching party. Flex reserves the right to suspend Client’s access to the Services in the event of any breach of this Agreement and shall not be liable for any damages resulting from such suspension.
7.3 Effect of Termination. Upon any termination or expiration the Agreement: (a) all rights and licenses to the Services shall immediately terminate; and (b) upon request, each party shall return to the other or delete Confidential Information of the other party, provided however, if Client wishes Flex to return Client Data, Client agrees to pay Flex’s then current data extraction and exportation fees.
8.1 Proper Authority. Flex represents that it has the right and authority to enter into this Agreement, to grant to Client the rights hereunder, and that the performance of its obligations under this Agreement will not breach or be in conflict with any other agreement to which Flex is a party.
8.2 Compliance with Laws. Flex warrants that it will comply with the laws and regulations applicable to Flex’s business in the performance of the Services.
8.3 EXCEPT AS SET FORTH IN THIS AGREEMENT, FLEX MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OTHER INFORMATION OR MATERIALS PROVIDED, OR MADE AVAILABLE, BY FLEX. FLEX HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FLEX DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE OR ERROR FREE. FLEX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FLEX. FLEX MAKES NO REPRESENTATION OR WARRANTY THAT USE OF THE SERVICES GUARANTEES LEGAL COMPLIANCE UNDER ANY FEDERAL, STATE OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE.
9.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FLEX’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO THE PROVISION OF SERVICES, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY FLEX FROM RESELLER FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY FLEX RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF.
10.1 Each Party (“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, its Affiliates and their respective officers, directors, employees, agents, representatives, successors, and assigns (“Indemnified Parties”), from and against any and all third party claims, damages, losses, suits, actions, demands, proceedings, expenses, and/or liabilities of any kind (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or filed (collectively, “Claims”), against the Indemnified Party, to the extent that such Claims arise out of or relate to: (a) the Indemnifying Party’s breach or alleged breach of any warranty, representation or covenant made under this Agreement; (b) infringement or misappropriation or alleged infringement or misappropriation of an Intellectual Property Right of a Third Party; (c) violation of Applicable Law by the Indemnifying Party; and (d) Claims by government regulators or agencies for fines, penalties, sanctions, underpayments, or other remedies to the extent such fines, penalties, sanctions, underpayments, or other remedies relate to the Indemnifying Party’s failure to perform its responsibilities under this Agreement.
10.2 The indemnification obligation contained in this Section 10, shall be Client’s sole remedy, and Flex’s sole obligation, with respect to claim of infringement.
11.1 Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without the other’s consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
11.2 Force Majeure. No failure or omission by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder, if the same shall arise from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following, which, for the purpose of this Agreement, shall be regarded as beyond the control of the parties in question: (a) acts of God; (b) acts or omissions of any governmental entity; (c) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (d) fire, storm, flood, earthquake, pandemic, endemic, plague, disease, accident, war, rebellion, insurrection, riot, strikes and lockouts; or (e) utility or telecommunication failures.
11.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Flordia without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the State of Florida, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
11.4 Notices. Any legal notice under this Agreement will be in writing and delivered by personal delivery, express courier, or certified or registered mail, postage prepaid and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) days after deposit in the mail. Notices will be sent to Client at the address set forth on the Order Form or such other address as Client may specify. Notices will be sent to Flex at the following address:
PO Box 315
3230 Main St.
Barnstable, MA 02630-9998
11.5 No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
11.6 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, negotiations and communications (both written and oral) regarding such subject matter.
11.7 Marketing. Client grants Flex the limited right to disclose that Client is a customer of the Flex. Flex agrees to obtain the prior written approval for any use of Client’s name in any print marketing materials, press release, blog posts, case studies or white papers.
11.8 Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11.9 Waiver. Failure of either party to insist on strict performance of any provision herein shall not be deemed a waiver of any rights or remedies that either party shall have and shall not be deemed a waiver of any subsequent default of the terms and conditions thereof.
11.10 Electronic Signatures and Communications. The parties agree that electronic signatures, whether digital or encrypted, by an Authorized User or a party’s authorized signatory are intended to authenticate such signatures and give rise to a valid, enforceable, and fully effective agreement. The parties expressly agree that any terms in Client’s purchase order forms, or electronic communications, other than orders placed by Client pursuant to Section 1.2, form no part of this Agreement.
In order to resolve a complaint regarding the Company Services or to receive further information regarding use of the Company Services, please contact Company as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
PO Box 315
3230 Main St.
Barnstable, MA 02630-9998
BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS (IF APPLICABLE) AND ALSO BY CONTINUING TO USE THE WEBSITE. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT Flex MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE COMPANY SERVICES OR THE WEBSITE.