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These Terms of Use ("TOU") are entered into by and between Flyp Technologies Inc., d/b/a Uberflip, with offices at 1183 King Street West, Suite 100, Toronto, Ontario, M6K 3C5 ("Uberflip" or "we") and the entity agreeing to these terms ("Customer" or "You"). These TOU are effective as of the date (the "Effective Date"). Regardless if You signed up for a free trial ("Free Trial"), or have an "Account" (including Starter, Pro, Enterprise or any other offering by Uberflip as a Customer, Partner or Reseller), these TOU and each of the following agreements (to the extent applicable as determined by Uberflip) shall apply, Product License Agreement ("PLA"), Reseller Agreement ("RA") Partner Agreement ("PA"), Uberflip Affiliate Program Agreement ("UAPA") and/or Enterprise Agreement ("EA") together with all schedules, appendixes and attachments to any of them (and each being an "Applicable Agreement") and you agree to be bound thereby. If You are accepting on behalf of your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) You have read and understand these TOU; and (iii) You agree, on behalf of the party that You represent, to these TOU. If You don't have the legal authority to bind your employer or the applicable entity, please do not sign any Applicable Agreement. These TOU govern the Customer's access to and use of the Uberflip Application as may be offered by Uberflip from time to time ("Service").
Uberflip is a Service that enables clients to convert static documents into digital editions ("Uberflip Issues"). Customers use the service to create digital editions of magazines, newspapers, newsletters, catalogues, corporate documents, training guides and other content. Customers have access to tools to enhance content, distribute content, restrict access, charge for content and monitor engagement of such content.
Customers use an "Upload" to add each individual file to its "Account" (where the Customer manages its content). One Upload allows for the addition of one file. Uberflip may offer other "Products" for Pro or Enterprise Customers which include emails campaigns ("Emails Sent"), unbranded page views (Page Views), custom URL domains ("Domains"), native apps ("Apps") and other Account specific requirements.
Upon agreeing to the TOU and paying for Services from Uberflip, the Customer will have access to create the agreed upon number of digital editions for the term of the subscription. In general, the Service will be available 24 hours a day, 365 days a year. Uberflip reserves the right to take the service down for periodic maintenance and upgrades. Server outages and slow performance are possible, though they are not likely to be frequent or sustained.
Uberflip make its Service available for You to create, enhance, distribute and track digital publications. The software and Service is protected by copyright and other intellectual property laws and treaties and is owned by Uberflip or our suppliers. You may not sell or redistribute the service without the prior written consent of Uberflip. Except for Uberflip approved uses of any Uberflip API (Application Programming Interface), Customers may not incorporate it or any portion of it into another product. Customers may not reverse engineer, decompile, or disassemble the service or otherwise attempt to derive the source code (except where expressly permitted by law). Except for Uberflip approved uses of any Uberflip API, Customers may not modify, adapt, or create derivative works from the Service in any way or remove proprietary notices. Customers agree to abide by all laws and regulations in effect regarding use of the Service. Customers may not authorize or assist any third party to do any of the things prohibited in this paragraph. Please refer to Uberflip's privacy policy, available at (the "Privacy Policy") for information on how Uberflip collects, uses and discloses personally identifiable information from its users. By using the Service Customers agree to our use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
You authorize us to provide You with required notices, agreements and information concerning Uberflip electronically. Uberflip will provide You our notices either by sending them to the e-mail address that You give to us or by posting the notices on the home page or support page of Uberflip or on the relevant web page of the applicable service. If You want to withdraw your consent to receive notices electronically, You must discontinue your use of Uberflip.
If Customers sign up to use Uberflip, You agree to provide us with current and true information and You must be legally competent to enter into contracts and authorized to act as an agent of your company.
Uberflip may offer new features from time and other features may be discontinued or changed at any time and without notice. Upgrades and changes in the software may result in changes in the appearance and functionality of your Uberflip Issues. Uberflip will use commercially reasonable efforts to notify Customers of any such changes.
Uploads and other Products (including legacy A La Carte Licenses and any overage fees) are charged at defined costs as outlined in the Applicable Agreement, the Uberlfip website or as agreed to through signing up online ("Online Signup"). Uberflip may change the price of any of its Services without notice; however, reasonable notice will be provided to existing Customers before any such changes take effect should they represent an increase in price.
Uberflip offers different "Packs" suited to different user needs. The Packs include: Starter, Pro, Pro +, Enterprise, Enterprise +, and Enterprise Flex, with each Pack including different features at varying monthly price points ("Pack Fees"). Uberflip may chose at its discretion to alter the features associated to each Pack at any time. Customers can reference the feature matrix on the Uberflip website for the current features included with their Pack. Any Uploads and Page Views (where applicable) included in a Pack are for use in the current month for which payment is made. Uploads and Page Views do not accumulate or carry forward month to month. The number of Uploads and included Page Views in a Customer's account will be replenished on the first of each month to the level associated with the purchased Pack upon successful processing of payment. To avoid limits on Page Views Accounts must ensure that the 'powered by uberflip' logo is enabled for the Uberflip Issues for the entire month.
Customers on any quantity of a Starter, Pro or Enterprise Pack can leverage the Page Replacement tool to correct and update pages in a specific Issue without needing to Upload a new document. Accounts in Sleep Mode or Always Free do not have the Page Replacement Feature. This feature is designed for corrections after an Issue has been shared. The Page Replacement tool is not designed to act as a version control tool whereby a Customer replaces every page in an Issue in entirety to reduce Upload purchases. Uberflip has the right to turn off Page Replacement for Customers whose use does not conform with its intended design.
Pro or Enterprise Customers who subscribe to an App agree to the monthly listing fees ("App Fee") and setup fees ("App Setup") associated with the App. Customers pay an App Setup Fee which is non-refundable regardless of the approval of the App by the corresponding third party app store. A minimum 12 month term applies for App Fees from the date the App becomes available in the associated app store ("App Environment" i.e. iOS, Android). The App will remain in the App Environment as long as the Customer continues to pay the App Fee. At the discretion of Uberflip or the App Environment, Uberflip has the right to remove the App if the third party App Environment changes its guidelines or polices for listing Apps. If Uberflip has to remove the App in such scenario the App Fee will not be charged in the future but no refunds for previous App Fees or App Setup will be issued. Should a Customer require an unscheduled update to an App including but not limited to requests such as branding or description the Customer will pay a fee based on work performed ("App Update Fee").
Pro or Enterprise Customers can purchase a Domain at a onetime fee ("Domain Setup"). The Domain is tied to a specific Account and cannot be changed or moved to another Account without paying additional fees. Uberflip is not responsible for costs or procedures associated with maintaining the Domain through your internet service provider. Pro or Enterprise Customers who use pay per use features such as Emails Sent agree to the fees associated with such features and will be billed accordingly as outlined within the Uberflip Application or on the Uberflip website.
Pro and Enterprise Customers have access to the Uberflip API. Each API Key/Signature pair includes 10,000 unique calls per day, and can burst to a maximum of 20,000 unique calls per day. Any calls that exceed the daily maximum burst limit will respond with an error. A daily overage will be calculated at a rate of $1/100 calls, for any calls over the included 10,000 unique calls daily limit. (e.g. if you make 12,000 unique API calls in one day, you will be charged $20 for the additional 2,000 calls over the included limit.) Overages are billed on the 1st of the following month.
Unless otherwise agreed to in writing between You and Uberflip, amounts due shall be paid in U.S. dollars in advance of the start of Services. Unless otherwise agreed to all Accounts other than agreed terms on Enterprise + Accounts require a valid credit card on file which will be used for all charges. Payment is charged in advance for monthly subscription fees (Pack Fees, App Fees, etc) on the first of the month in which such Service is to be used. Uploads or other Products will be applied to the Customer's Account only after payment, in full, is processed. There is no grace period. Fees for Services will be fully earned and non-refundable when Services are first made available for Customer use. Any overages associated with Pro and Enterprise Accounts including but not exclusive to Page Views, Emails Sent, and API Overages will be automatically charged to your credit card on the first of the month after which the overages were consumed. One time fees (including but not limited to App Setup and Domain Setup) are charged at the time in which the Applicable Agreement is approved.
Uberflip will make efforts to contact Customers for updated credit card information when necessary, however, Uberflip may terminate an Account at any time should it be unable to charge amounts when due. Upon termination of an Account Uberflip may permanently delete any content, Uploads and data associated with such delinquent Account. Delinquent payments shall be subject to an administrative fee equal to the greater of 5% of each outstanding invoice or $25 per invoice until paid in full. You will be responsible for all reasonable expenses (including reasonable attorneys' fees) incurred by Uberflip in collecting delinquent amounts, except where such delinquent amounts are due to Uberflip's billing inaccuracies. You are responsible for any taxes payable in connection with this Agreement (other than income taxes of Uberflip), and You will pay Uberflip without any reduction for such amounts. If Uberflip is obligated to collect or pay taxes, the taxes will be invoiced to You.
Auto Renew - For any continual monthly subscription fees including but not limited to Pack Fees and App Fees, in the absence of specific instructions to discontinue use of the Service at the end of a subscription term, the term will auto-renew. Notice to change a recurring monthly fee request must be made no later than the deadline outlined with respect to the specific Service. Note all cut off dates refer to 11:55 pm based on Eastern Time zone.
Sleep Mode - Should a client wish to put a Pro account where recurring monthly Pack fees apply into "Sleep Mode", specific minimum and Incurred Fees apply. Sleep Mode refers to an account which cannot upload new licenses or publications, but where its archived Uploads can be viewed by the account holder and its readers. An account in Sleep Mode has 100,000 included page views. An account in Sleep Mode is subject to Incurred Fees for additional page views, emails sent, and potential storage of uploaded publications based on the pricing at the time. A Minimum Monthly Fee applies for accounts in Sleep Mode which covers the first 100,000 page views. The Minimum Monthly Fee is charged at the start of the month for which the period applies. Incurred Fees above the Minimum Monthly Fee are charged on the first day of the following month for which those fees are incurred based on account usage.
Downgrading - Accounts that have Self-Serve Subscription management can Downgrade their Pack level within the Uberflip Application under the Account section. Pack Downgrades using Self-Serve must be made no later than 11:55 pm (Eastern Time) on the last day of the month. Starter Accounts can opt to Downgrade to "Always Free" to avoid future charges instead of Cancelling their Accounts (see Cancelling below). Accounts that do not have Self-Serve Subscription management will be prompted within the Uberflip Application to contact Uberflip to manage Pack Downgrades to their account and must do so the greater of the notice outlined in any Applicable Agreement or three (3) business days prior to the next scheduled payment.
Cancellation - Should a Customer wish to "Cancel" an account there will be no further fees in the next subscription term, beyond incurred overages. Customers wishing to cancel must inform Uberflip the greater of the notice outlined in any Applicable Agreement or three (3) business days prior to the next scheduled payment to Cancel the auto-renewal. Cancellation requests are not accepted verbally or via e-mail or fax; an email or phone request to cancel an account shall not result in cancellation. The Account Cancellation form found here must be completed in order to cancel an account which will generate a cancellation confirmation email to the Customer. If an e-mailed cancellation confirmation has not been received by the Customer from Uberflip, it will be assumed that no cancellation took place. Customers are solely responsible for properly canceling their account. After the notice periods expires the new subscription term is non-cancellable and non-refundable. Customers will not be provided any refunds for unused time on a Subscription. When Cancelling an Account Uberflip may delete all data associated with the Cancelled account, including Issues, Apps, statistics, Domains, sub-accounts, and any other feature-specific data. Any such deleted data cannot be recovered.
Expiration - Uploads purchased outside of a Pack model such as those from the legacy A La Carte model expire one (1) year from the time of purchase. At the one year point Uberflip will notify the Customer that it must renew its contract by purchasing additional or replacement Uploads for its active publications. Should the Customer fail to respond or take action within thirty (30) days of notice Uberflip will delete the Customer's Account and any active Uberflip Issues will no longer be available.
Apps - As an exemption to any of the cancellation terms outlined in the previous scenarios in this paragraph, for Products including the Apps which are listed in App Environments a minimum 1 year term is required from the initial activation of each App. To cancel an App after the first 12 months a minimum of the greater of five business days notice before the next scheduled payment or the applicable App stores' minimum advance cancellation period is required.
You may use Uberflip and its technology for lawful purposes only. You may not use Uberflip to distribute any material, or otherwise engage in any conduct that:
The Uberflip platform contains mechanisms (such as the Subscription Management Module or Remote Security API Settings) which allow You to limit access to your content. It is the Customer's responsibility to ensure that these mechanisms have been enabled to restrict access to content which may be deemed to be classified as confidential. Uberflip will put its best efforts in place to ensure its mechanisms for controlling access to content are performing as intended, but does not take responsibility or assume liability for content which makes its way into the public domain. Uberflip has access to your content for troubleshooting purposes. Uberflip will not distribute your content without your permission. Should one of your readers redistribute your confidential content Uberflip does not take responsibility or assume liability for such action.
Customers may opt to post content to a public newsstand or content portal offered as Mstand (including www.mstand.com or affiliated Mstand powered newsstands) from time to time. If You elect to post content on Mstand anyone may anonymously access such content. Similarly, Uberflip may use any posted content, individually, or with third parties which we may collaborate with from time to time, in connection with the advancement of the technology, research or content promotion or for any purpose.
You agree that we may list You as a client and/or use your logo for our promotional purpose unless You advise us in writing that You do not consent to our so doing.
We provide Uberflip "as is", "with all faults" and "as available". We and our suppliers make no express warranties or guarantees about Uberflip. To the extent permitted by law, Uberflip and our suppliers disclaim implied warranties that Uberflip and all services distributed through Uberflip are merchantable, of satisfactory quality, accurate, timely, fit for a particular purpose or need or non-infringing. We do not guarantee that Uberflip will meet your requirements, is error-free, reliable, without interruption or available at all times. We do not guarantee that the results that may be obtained from the use of Uberflip, including any support services, will be effective, reliable, accurate or meet your requirements. We do not guarantee that You will be able to access or use Uberflip (either directly or through third-party networks) at times or locations of your choosing. No oral or written information or advice given by any of our representatives shall create a warranty. You may have additional consumer rights under your local laws that this contract cannot change.
Your exclusive remedy regarding any service provided by us shall be the replacement of any such service found to be defective. Your sole and exclusive remedy for any other dispute with us is to discontinue your use of Uberflip. In no event shall our liability or the liability of our parent and our suppliers for any and all claims relating to the use of Uberflip exceed the total amount of service fees that You paid us during a one-year period for the specific service at issue.
We and our suppliers shall not be liable for any indirect, special, incidental, consequential, punitive, or exemplary damages arising from your use of, inability to use, or reliance upon Uberflip. These exclusions apply to any claims for lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any other commercial damages or losses, even if we knew or should have known of the possibility of such damages. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability, and the liability of our suppliers, shall be limited to the extent permitted by law.
You understand and agree that You are an independent company and have no authority to bind Uberflip in any way. You are solely and personally responsible for all of your employees, contractors and agents, or of any of your respective clients, and all labour costs and expenses arising in connection with them and for any and all claims, liabilities, damages and debts of any type whatsoever that may arise on account of your activities, or those of You or your client's employees, agents and contractors, in the performance of the Applicable Agreement. Except as expressly provided in any Applicable Agreement or these TOU, Uberflip shall have no right to exercise any control over You or your activities or operations.
You shall assume full responsibility for the proper reporting and payment of all federal, state, provincial and local taxes of any kind, contributions and/or special levies imposed on it or required of it under employment or unemployment insurance, social security, and/or other laws or regulations, with respect to the performance of the Applicable Agreements by You and your clients employees, agents or contractors, and You agree to indemnify and hold Uberflip harmless from any liability, loss, damage or claim arising against or incurred or paid by Uberflip by reason of any failure by You to fully or timely to assume said responsibilities.
You shall obtain such authorizations, licenses, permits and other governmental or regulatory agency approvals as are required for your performance of the Applicable Agreements.
You agree to defend, indemnify, and hold harmless Uberflip and its affiliated companies, and our respective employees, contractors, officers, directors, and agents from any actions, claims, liabilities or expenses or other loss or damage, including attorney's fees, that arise from your use or misuse of the Service or arising from any third party action, claim, liability or expense or other loss or damage which Uberflip may be subject to as a result of Customer's use of the Service, including without limitation anything relating to Customer's infringement of the intellectual property of any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will cooperate with us in asserting any available defences. .
You agree that the laws of the Province of Ontario, Canada govern this contract and any claim or dispute that You may have against us, without regard to Ontario's conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that You may have against us will be resolved by a court located in the Province of Ontario and You agree and submit to the exclusive jurisdiction of such courts for the purpose of litigating any such claim or action.
Please Note That by Agreeing to These TOU, You Are: (1) Waiving Claims That You Might Otherwise Have Against Us Based on the Laws of Other Jurisdictions, Including Your Own; (2) Irrevocably Consenting to the Exclusive Jurisdiction of, and Venue in, Province of Ontario over Any Disputes or Claims You Have With Us; and (3) Submitting Yourself to the Personal Jurisdiction of Courts Located in the Province of Ontario for the Purpose of Resolving Any Such Disputes or Claims.
These TOU and all Applicable Agreements and any supplemental terms, policies, rules and guidelines posted on Uberflip constitute the entire agreement between You and us and supersede all previous written or oral agreements. If any part of these TOU is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. To the extent of any conflict between these TOU and any Applicable Agreement, the Applicable Agreement will prevail.
Uberflip may modify the TOU at any time. The current TOU will be available on the Uberflip Web site. Your continued use of the Service after changes have been made constitutes your acceptance of the revised TOU.
These TOU and any Applicable Agreement, may not be assigned by You without the prior written consent of Uberflip; provided, however, that Uberflip hereby consents to the assignment of this Agreement to any business entity majority owned or controlled by You or for which You are under common control. These TOU and any Applicable Agreements are binding upon any successors and permitted assigns.
If either party shall be delayed or prevented from the performance of any act required by these TOU or any Applicable Agreement by reason of acts of God; strikes, lockouts, bans, limitations of work or other industrial disturbances; unforeseeable restrictive governmental laws, regulations or actions, including quarantine or customs restrictions; acts of war, terrorism, riots, insurrections, vandalism, or sabotage; or similar causes, without fault and beyond the reasonable control of the party obligated, performance of such act shall be excused for the period of the delay, and the period of performance of such act shall be extended for a period equivalent to the period of such delay. This does not exclude the application of the rules of law in relation to frustration of contracts.
Your right to use Uberflip automatically terminates if You violate these TOU or any rules or guidelines posted in connection with Uberflip. We also reserve the right, in our sole discretion, to terminate your access to all or part of Uberflip, for any reason, with or without notice. Where possible, Uberflip will use commercially reasonable efforts to notify Customers prior to any such termination. Customer agrees that Uberflip shall not be liable to Customer, any end user, or any third party for any modification, suspension, or termination of the Service. In no way shall the termination of any Applicable Agreements relieve You from paying to Uberflip any amounts then owing by You to Uberflip. Sections 8, 12, 13, 14, 15, 16, 17, and 21 shall survive the expiration or termination of any Applicable Agreements.
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