Legal (T&C)

Terms of use

Last Updated: June 27, 2019 (superseded Terms of Use dated December 5, 2013)
This service agreement (the “Agreement“) is an agreement between the person or entity visiting, browsing, accessing or otherwise using (the term “use” will refer to any of the foregoing) the Offering (“Customer“) and Flyp Technologies Inc., d/b/a Uberflip with offices at 370 Dufferin St., Toronto, ON M6K 1Z8 (“Uberflip“, together with Customer, the “Parties” and each, a “Party“), and is entered into as of the earlier of: (A) the date Customer first uses any element of the Offering; and (B) the date Customer agrees to be bound by the terms and conditions set out herein (the “Effective Date“).

BY USING ANY ELEMENT OF THE OFFERING (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT IT HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 15(K). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OFFERING, INCLUDING USE OF ANY ELEMENT THEREOF. CUSTOMER REPRESENTS AND WARRANTS TO UBERFLIP THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE OFFERING ON BEHALF OF ANOTHER PERSON OR ENTITY, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO UBERFLIP THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THIS AGREEMENT.

1.Definitions

(a) “Agreement” has the meaning set out in the introductory paragraph of this Agreement.

(b) “Billing Period” means the date as set out in the Order Terms or the Website.

(c) “Customer Data” has the meaning ascribed to it in Section 4(b), and includes Personal Information (if any).

(d) “Derivative Data” means all modifications, compilations, derivative works and results from processing (including analyses, usage statistics and patterns, datasets, databases, reports, recommendations and visual representations) created or developed from Customer Data or on the basis of Customer’s use of the Services by Uberflip or through the Platform in connection with the Services.

(e) “Effective Date” has the meaning set out in the introductory paragraph of this Agreement.

(f) “Fees” means the fees and other charges that apply to Customer’s initial setup and ongoing access to and use of the Services, payable in the amounts and frequency indicated on the Website, in the Order Terms (if applicable) or otherwise communicated by Uberflip to Customer from time to time (including through the Website).

(g) “Offering” means, collectively, the Platform and the Services.

(h) “Order Terms” means, if applicable, the order terms provided to Customer which may supplement or modify the terms and conditions set forth herein.

(i) “Personal Information” means information about an identifiable individual transferred by Customer or its permitted agents to Uberflip hereunder, and any personal information derived or otherwise create by Uberflip in connection therewith.

(j) “Platform” means, collectively, the Website and all systems of Uberflip and Uberflip’s third-party suppliers that are used in the provision of the Services.

(k) “Services” means the services to be provided by Uberflip to Customer, as described on the Website, as may be amended or supplemented by Uberflip from time to time in its sole discretion and without notice.

(l) “Website” means, collectively, the Uberflip websites, including the website located at: http://www.uberflip.com.

(m) “Term” means the duration of this Agreement.

2.Services

(a) Provision of the Services. Uberflip will make the Services available to Customer on the terms and conditions set out in this Agreement and conditional on Customer: (i) making commercially reasonable efforts to cooperate with the reasonable requests of Uberflip; (ii) providing Uberflip with access to any required systems of Customer or third parties (and making all required third-party disclosures and obtaining all required third party consents in respect of such access) which Customer wishes the Platform to obtain data from or provide data to in the course of providing the Services; and (iii) to the extent Customer Data includes Personal Information, providing all notices and disclosures and obtaining all necessary consents and authority in respect of such Personal Information as required under and in compliance with applicable privacy law in order for Uberflip to provide the Services on behalf of Customer and process Personal Information in the manner set out in the Uberflip Privacy Policy.

(b) Provisioning of the Platform. Uberflip will: (i) provide to Customer basic support through the Website as described more fully in Section 8 (Customer Support); and (ii) use commercially reasonable efforts to make the Platform reasonably available with minimal downtime; except for: (A) downtime and scheduled upgrades (as described more fully below); and (B) unavailability caused by circumstances beyond Uberflip’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or the unavailability of any third-party provided goods or services.

(c) Platform Updates and Scheduled Downtime. Uberflip may update the functionality and user interface of the Platform from time to time in its sole discretion as part of its ongoing mission to improve the Offering and the use of the Offering by Uberflip’s other customers. Uberflip may from time to time schedule downtime for maintenance and upgrades without prior notice.

(d) No Responsibility for Data Storage and Backup. Uberflip cannot guarantee that the Platform will provide regular data backups of any Customer Data stored on it. It is Customer’s responsibility to backup onto Customer’s own local system all Customer Data, including all data, files and records that Customer submits to Uberflip.

3. License Grants.

(a) License Grants by Uberflip. Subject to the terms and conditions of this Agreement and Customer’s compliance therewith, Uberflip grants to Customer: (i) a revocable, non-exclusive, non-transferable license during the Term to access and use the Platform over the Internet and through the then available standard interface for the Platform in connection with receiving the Services in accordance with this Agreement; and (ii) a revocable, perpetual, non-exclusive, non-transferable license to copy, use, reproduce and modify any Derivative Data provided to Customer for Customer’s internal business purposes only.

(b) License Grant by Customer. Subject to the terms and conditions of this Agreement, including Uberflip’s confidentiality obligations, Customer grants to Uberflip a transferrable, sublicenseable, royalty-free, fully paid-up, worldwide license to copy, use, reproduce, modify, develop, access, collect and store the Customer Data solely for the purpose of providing the Services.

4. Reservation of Rights.

(a) Rights Reserved by Uberflip. Uberflip expressly reserves all rights in the Services, the Platform, all Derivative Data and all materials (other than Personal Information) provided by Uberflip hereunder and not specifically granted to Customer (“Uberflip Property”). All right, title and interest in the Uberflip Property, as well as any update, modification, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Uberflip (or Uberflip’s third party suppliers, as applicable). The Uberflip Property is licensed on a subscription basis on the terms and conditions of this Agreement and not “sold” to Customer.

(b) Rights Reserved by Customer. Customer expressly reserves all rights in any data, information, records and files that Customer (or any User) loads, transmits to or enters into the Platform, including data that the Platform is configured to obtain from Customer’s servers or systems or from third parties on Customer’s behalf, but excluding any Derivative Data (the “Customer Data”), subject to the license that Customer grants Uberflip in accordance with the provisions of this Agreement, and provided that Customer does not acquire any intellectual property rights in the Services, the Platform, any Derivative Data or any elements of any of the foregoing.

5. Privacy Policy; Internet Security Disclaimer; Limitation, Suspension or Termination of Access.

(a) Privacy Policy. To the extent that Customer Data may contain any Personal Information, Uberflip will collect, use, disclose such Personal Information for the purposes authorized under this Agreement and in accordance with Uberflip’ privacy policy located at: uberflip.com/privacy (the “Privacy Policy“). The Privacy Policy is hereby incorporated by reference and forms part of this Agreement.

(b) Internet Security Disclaimer. As between Uberflip and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer understands that the technical processing and transmission Customer Data is fundamentally necessary to use of the Services. Therefore, Customer expressly consents to Uberflip’s storage of Customer Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Uberflip. Uberflip will endeavor to provide industry-standard secure data transmission channels for use by Customer to upload, enter or transmit Customer Data to the Services, for example through the use of the HTTPS protocol. However, despite such efforts, Customer acknowledges and understands that Customer Data may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, telephone or other electronic means. Uberflip is not responsible for any Customer Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by Uberflip, including, the Internet, third party websites, and Customer’s local network. Customer agrees that Uberflip is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet, and Customer waives any and all claims against Uberflip in connection therewith.

(c) Limitation, Suspension or Termination of Access. In addition to any other suspension or termination rights of Uberflip pursuant to this Agreement, certain extraordinary circumstances may require Uberflip to suspend, terminate or limit (as appropriate and as determined in Uberflip’s sole discretion) Customer’s access to or use of the Platform or the Services, or any component thereof, without notice in order to: (i) prevent any misuse or abuse of the Offering or other Uberflip Property; (ii) prevent any damage to, or degradation of the integrity of Uberflip’s systems or Uberflip Property; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect Uberflip from potential legal liability or harm to its reputation or business. Uberflip also reserves the right to approve, reject, cancel or remove any Customer Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services at any time and for any reason in Uberflip’s sole discretion, and Uberflip will not be liable or responsible for exercising this right. For greater clarity, Customer acknowledges and agrees that Uberflip does not guarantee that any Customer Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services will be available or displayed. Uberflip will use commercially reasonable efforts to notify Customer of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Uberflip will promptly restore Customer’s access to the Offering as soon as the event giving rise to the limitation or suspension has been resolved, as determined in Uberflip’s sole discretion. Nothing contained in this Agreement will be construed so as to limit Uberflip’s ability to take action or invoke remedies, or act as a waiver of Uberflip’s rights in any way with respect to any of the foregoing activities. Uberflip will not be responsible for any loss or damages incurred by Customer as a result of any limitation, termination or suspension of access to or use of the Platform or the Services under this Section.

6. Customer Responsibilities and Restrictions.

(a) Customer ID. Upon Customer’s request, but subject to any applicable limitations associated with Customer’s subscription, Uberflip will issue user identification and password (“User ID”) to Customer for each individual Customer wishes to have access to and use of the Offering (each, a “User”). Customer may only identify its partners, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Users. Users may only access and use the Platform and the Services through a User ID issued to Customer. Customer will not allow Users to share their User ID with any other person. Customer is responsible for any and all activity occurring under the User IDs associated with Users. Customer is responsible for all use of the Offering by Users and for maintaining the confidentiality of their User ID and will promptly notify Uberflip of any actual or suspected unauthorized use of the Offering. Uberflip reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.

(b) Customer Responsibilities and Restrictions. Customer agrees that Customer is responsible for the compliance by the Users with this Agreement and for the Users’ use of the Offering, as well as for ensuring that the Users maintain the confidentiality of their User IDs. Customer agrees that Customer is responsible for all charges incurred by the Users in connection with access to or use of the Offering and generally for any activity occurring through a User ID. Without limiting the generality of any of the foregoing, Customer agrees that Customer will not, and will not permit any person to:

(i) use the Offering other than as permitted by this Agreement;

(ii) use the Offering to send, store, publish, post, upload or otherwise transmit any Customer Data in violation of any warranty, representation or obligation of Customer under this Agreement;

(iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering (in whole or in part) available to any third party, other than to the Users, or as otherwise expressly contemplated in accordance with this Agreement;

(iv) use the Offering to upload, collect, transmit, store, use or process, or ask Uberflip to obtain from third parties, any Customer Data: (A) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (B) for which Customer does not have the authority, consent or permission from the individual(s) to whom the Personal Information relates in accordance with applicable privacy legislation; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (D) that is tortious, defamatory, obscene, or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation (including applicable privacy and anti-spam legislation) or would give rise to civil or criminal liability.

(v) use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;

(vi) continue to use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering following a notice from Uberflip of such use;

(vii) attempt to gain unauthorized access to the Offering or its related systems or networks;

(viii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Offering;

(ix) use any data mining, robots or similar data gathering or extraction methods (including electronic address harvesting);

(x) access the Offering for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Offering; or

(xi) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Offering or any part thereof or otherwise attempt to discover any source code or modify the Offering, except as expressly provided for in this Agreement.

(c) Customer Responsibility for Customer Data. Customer has sole responsibility for providing all notices, making all disclosures and otherwise obtaining all necessary consent and authority required by and in accordance with applicable laws regarding Customer Data (including any Personal Information). Uberflip will use the Customer Data it is provided by Customer or third parties in performing the Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.

(d) Removal of Customer Data on Request by Customer. Customer may control the Customer Data stored by the Services, including (subject to Section 10(b)) by deleting or requiring Uberflip to delete all or part of the Customer Data (including Personal Information) at any time.

7. Term.

This Agreement will commence on the Effective Date and continue in effect until terminated in accordance with its terms, or as otherwise set out in the Order Terms.

8. Customer Support.

Uberflip will provide the following support to Customer:

(a) Web and Email Support. Customer will have access to Uberflip’s technical support part of the Website and may use the available interfaces, including any customer support email addresses posted thereon, to submit service requests.

(b) Incident Management. Uberflip will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantially conform to its expected operation; provided that Uberflip will not have an obligation to provide a correction for all such nonconformities.

9. Fees and Payment.

(a) Fees. Customer will pay to Uberflip the Fees in the manner, amounts and frequencies indicated on the Website, in the Order Terms (if applicable) or otherwise communicated by Uberflip to Customer from time to time (including through the Website).

(b) Payment. Unless otherwise indicated on the Website or, if applicable, the Order Terms: (i) Fees are payable in advance on or after the first day of the applicable billing period; and (ii) if required by Uberflip, Customer will provide to Uberflip (and keep current at all times during the Term) the details (including number, date of expiry and CVC) of a valid credit card that is acceptable to Uberflip in its sole discretion (the “Credit Card”). Customer hereby agrees and authorizes Uberflip to charge the Credit Card for any Fees that become due and payable hereunder. Any Fees in respect of non-recurring or one-time charges incurred during a billing period will be automatically charged to the Credit Card on or after the first day of the next billing period. One time fees (including any fees for add ons) are charged at the time in which the Applicable Agreement is approved. In the event the Billing Start Date set out in the Order Terms is a date that is not the first day of the calendar month, Uberflip may pro-rate the applicable Fees based on the number of days in the first Billing Period of the Term and thereafter adjust the payments to recur on the first day of the calendar month for each of the remaining billing periods during the Term. If the Term ends on any day other than the date that is not the last day of the calendar month, Uberflip may pro-rate the applicable Fees based on the number of days in the last billing period of the Term. If applicable, any Fees paid in advance will be applied against monthly invoices on the first day of each calendar month of the Term.

(c) Invoices. From time to time, Uberflip may prepare and send to Customer, at the then-current contact information on file with Uberflip, invoices for any Fees and other amounts that have become due and payable under this Agreement. Unless otherwise expressly stipulated in an invoice, Customer agrees to pay all invoiced amounts immediately upon receipt.

(d) No Set-Off and Late Payment Charge. Customer may not withhold or “set-off” any amounts due under this Agreement. Unless otherwise indicated on the Website, all Fees are non-refundable and Uberflip will provide no full or partial credits or refunds, including in respect of Services that are paid for but not used by Customer. Uberflip reserves the right to suspend Customer’s access to the Offering until all due amounts are paid in full. Any late payment will be increased by the costs of collection (including reasonable legal fees), and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof until fully paid.

(e) Certain Taxes. Fees and charges quoted in this Agreement do not include, and Customer will pay, indemnify and hold Uberflip harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Uberflip.

10. Confidential & Proprietary Information.

(a) Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser“, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of this Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that: (a) the terms and conditions of this Agreement, all Derivative Data and all parts of the Offering, whether marked as “confidential” or “proprietary” or not, will be considered to be Uberflip Confidential & Proprietary Information; and (b) all Customer Data (but excluding any Derivative Data), whether marked as “confidential” or “proprietary” or not, will be considered Customer’s Confidential & Proprietary Information; and further provided that Discloser’s Confidential & Proprietary Information (other than Personal Information) does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

(b) Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient will use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10, if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of this Agreement, regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Uberflip may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.

(c) Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

11. Customer Warranty; Disclaimer; Indemnity.

(a) Customer Warranty. Customer represents and warrants to, and covenants with Uberflip that: (i) the Customer Data will contain no information about an identifiable individual or information that is otherwise subject to privacy laws (“Personal Information“), except for Personal Information: (A) in respect of which Customer has provided all notices and disclosures and otherwise obtained all necessary consents and authority from all applicable individuals in accordance with applicable laws to enable Uberflip to provide the Services on behalf of Customer and to process Personal Information in the manner set out in the Uberflip Privacy Policy; and (B) that complies with Customer’s representations, warranties and obligations set out in this Agreement; and (ii) Customer will agree to and at all times comply with (and will cause each User to agree to and at all times comply with) all third-party terms and conditions applicable in respect of the Offering.

(b) Disclaimer. THE OFFERING AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY UBERFLIP TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. UBERFLIP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. UBERFLIP DOES NOT WARRANT THAT THE OFFERING WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, UBERFLIP EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE OFFERING WILL BE ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

(c) Indemnity. Customer agrees to indemnify and hold harmless Uberflip, its employees, officers, directors and affiliates against any and all liability (including losses, damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) relating to: (i) Customer Data, (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) Customer’s use of the Offering, including in combination with any third party software, application or service.

12. Limitation of Liabilities.

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF UBERFLIP IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY UBERFLIP UNDER THIS AGREEMENT DURING THE PRECEDING 12 MONTHS. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL UBERFLIP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(b) Type. IN NO EVENT WILL UBERFLIP BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL; (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY; OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT WILL UBERFLIP BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

13. Notices.

Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other party’s server. Notices must be in writing and sent: (a) if to Uberflip, to the address set out in the introductory paragraph of this Agreement; and (b) if to Customer, to the current postal or email address that Uberflip has on file with respect to Customer. Uberflip may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Uberflip current at all times during the Term.

14. Termination.

(a) Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party: (i) commits a material breach of this Agreement, and either: (A) fails within seven days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion; or (B) such material breach is incapable of being cured; or (B) becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.

(b) Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all Fees and other amounts then owing in accordance herewith), including all licenses granted hereunder, will immediately terminate except as provided below; (b) within 30 days after the effective date of termination, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 10 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 4 (Reservation of Rights), Section 6 (Customer Responsibilities and Restrictions), Section 10 (Confidential & Proprietary Information), Section 11 (Customer Warranty; Disclaimer; Indemnity), Section 12 (Limitation of Liabilities), Section 14(b) (Survival), and Section 15 (General Provisions).

15. General Provisions.

(a) Assignment. Customer may not assign this Agreement to any third party without Uberflip’s prior written consent, except that Customer may assign its rights (but not obligations) hereunder to an affiliate of Customer. Uberflip may assign this Agreement, in whole or in part, to any third party without Customer’s consent. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon and inure to the benefit of the Parties’ successors and permitted assignees.

(b) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties hereby irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto, Ontario. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

(c) Right to List as a Customer. Customer agrees that Uberflip may utilize Customer’s name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, provided that such approval will not be unreasonably withheld.

(d) Compliance with Export Regulations. Customer has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; will indemnify and hold Uberflip harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the Offering. Customer will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

(e) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Uberflip herein mean the right of Uberflip to withhold such consent or exercise such discretion (as applicable) arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer. Unless otherwise indicated, all dollar amounts are in United States Dollars.

(f) Force Majeure. Neither Party will be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder will not be excused by this provision.

(g) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions will remain in full force and effect.

(h) No Waiver. Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.

(i) Independent Contractors. Customer’s relationship to Uberflip is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Uberflip.

(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

(k) Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, UBERFLIP MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT“), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY UBERFLIP, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE NOTICE THEREOF IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS EARLIER).

(l) English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

Copyright policy

Last Updated: September 5, 2013

Uberflip does not permit copyright infringing activities and infringement of intellectual property rights through the use of its services and reserves the right to remove any content that breaches its content policy (including materials which are obscene, pornographic, profane, harmful to minors or otherwise objectionable in Uberflip’s reasonable view). In addition, Uberflip reserves the right, if properly notified that content infringes on another’s intellectual property rights, to remove such content. If a copyright owner or an agent thereof contacts Uberflip regarding any content and claiming that its use through the Uberflip services infringes upon copyright, Uberflip will require the following information from the person claiming copyright infringement or that person’s agent (the “Complainant“):

  • an electronic or physical signature of the person authorized to act on behalf of the Complainant if they are the owner of the copyright’s interest;
  • a description of the copyrighted work that Complainant claims has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
  • identification of the URL or other specific location where the material that Complainant claims is infringing is located; contact information from the Complainant;
  • a statement by Complainant that Complainant has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by Complainant, made under penalty of perjury, that the above information in his/her notice is accurate and that Complainant is the copyright owner or authorized to act on the copyright owner’s behalf.

Cookie policy

Last Updated: July 24, 2019

Our websites use cookies and other tracking technologies to give you the best browsing experience. You can find out more on cookies and how we use them below. For further information on the processing of your personal data by Flyp Technologies Inc., please read our Privacy Policy.

Essential Website Cookies

These cookies are strictly necessary for the websites to function and cannot be switched off in our systems. Because these cookies are strictly necessary to deliver the websites, you cannot refuse them without impacting how our websites function. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

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Performance and Functionality Cookies

These cookies are used to enhance the performance and functionality of our websites, but are non-essential to their use. However, without these cookies, certain functionality may become unavailable.

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Analytics and Personalization Cookies

These cookies collect information that is used either in aggregate form to help us understand how our websites are being used or how effective our marketing campaigns are, or to help us personalize our websites and platform for you in order to enhance your experience.

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Advertising and Targeting Cookies

These cookies are used to make advertising messages more relevant to you and your interests. They also perform functions like preventing the same ad from continuously reappearing, ensuring that ads are properly displayed, and in some cases selecting advertisements that are based on your interests. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

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Anti-spam policy

Uberflip has a no tolerance spam policy. Uberflip’s customer support actively monitors large import lists and emails going to a large number of contacts. Any customer found to be using Uberflip for spam will be immediately cut-off from use of the product. If you know of or suspect any violators, please notify us immediately at support.

Every email contains a mandatory unsubscribe link – those individuals who try to remove this link will be warned that they are doing so. If the link is removed or de-activated in any way, Uberflip will terminate the customer’s account.

What is Spam?

Spam is unsolicited email also known as UCE (Unsolicited Commercial Email). By sending email to only to those who have requested to receive it, you are following accepted permission-based email guidelines.

What constitutes a Preexisting business relationship?

The recipient of your email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with you.

How Uberflip protects you from sending spam:

Uberflip’s Subscription Management E-Delivery Tool is a permission-based email-marketing tool that follows the strictest permission-based philosophies:

  • Communication – Your Uberflip registration page already states why you are collecting the site visitor’s email address, how you plan to use their address, and that you are following the embedded privacy policy. Additionally, by accepting our license agreement you have agreed to use only permission-based lists and never to sell or rent your lists.
  • Verification – Uberflip automatically sends all of your new contacts an email confirming their interest in receiving emails from you.
  • Unsubscribe – Every email generated from Uberflip contains an unsubscribe link which allows your contacts to opt-out of future emails and automatically updates your contact lists to avoid the chance of sending unwanted emails to visitors who have unsubscribed.
  • Identification – Your email header information is correct because it is pre-set for you by Uberflip. Your email’s “From” address is verified and already accurately identifies you as the sender.

What constitutes consent?

The recipient of your email has been clearly and fully notified of the collection and use of his email address and has consented prior to such collection and use. This is often called informed consent.

Isn’t there a law against sending Spam?

The federal anti-spam law went into effect on January 1st, 2004 and preempts all state laws. While this new law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a fine and/or imprisonment for up to 5 years.

How to protect yourself from Spam: Take the Spam Test

  • Are you importing a purchased list of ANY kind?
  • Are you sending to non-specific addresses such as:
    sales@domain.com, business@domain.com, webmaster@domain.com, info@domain.com, or other general addresses.
  • Are you sending to distribution lists or mailing lists which send indirectly to a variety of email addresses?
  • Are you mailing to anyone who has not explicitly agreed to join your mailing list?
  • Have you falsified your originating address or transmission path information?
  • Have you used a third party email address or domain name without their permission?
  • Does your email’s subject line contain false or misleading information?
  • Does your email fail to provide a working link to unsubscribe?
  • Are you failing to process any unsubscribe requests that come to you via a reply to your email within 10 days or the request?

If you have answered YES to ANY of the above questions you will likely be labeled a SPAMMER. For more information visit The Coalition Against Unsolicited Email (www.cauce.org) or contact Uberflip Customer Support (support@uberflip.com).

Data security policy

Last Updated: July 20, 2020

This Uberflip Security Policy (“Security Policy”) outlines the technical and procedural measures that Uberflip undertakes to protect the confidentiality, integrity, and availability of Customer Data. Uberflip has a written information security plan to implement the terms of this Security Policy that is reviewed and approved annually by its senior management team. This Security Policy forms part of the Uberflip Services Agreement or similar agreement entered into between Flyp Technologies Inc. d.b.a. Uberflip and Customer where referenced therein (the “Agreement”) and any capitalized terms used but not defined herein shall have the meaning set forth in the Agreement. In the event of any conflict between the terms of the Agreement and this Security Policy, this Security Policy shall govern with respect to the subject matter in question. This Security Policy may be updated from time to time upon notice to Customer (which may be provided through the Service or by publishing the updated Security Policy to Uberflip’s website) to reflect process improvements or changing practices, but any such modifications will not materially diminish either party’s obligations as compared to those reflected below. As used in this Security Policy: “Cloud Provider” means the third-party cloud provider, such as Amazon Web Services, Inc. (AWS) that hosts the Service; and “Uberflip Personnel” means Uberflip employees and contractors.

  1. Customer Data Access and Management
    1. Customer controls access to its account in the Service via User IDs and passwords.
    2. Uberflip Personnel may access Customer’s admin console in order to help with support issues. Customer may block access to Uberflip Personnel by enabling the “Block Support/Management Access” setting using the security tab of their account settings.
      1. Uberflip Personnel may still have access to Customer Data via back-end database, storage, and server access.
    3. Uberflip Personnel are prohibited from storing Customer Data on local desktops, laptops, mobile devices, shared drives, removable media such as USB drives, or on public facing systems that do not fall under the administrative control or compliance monitoring processes of Uberflip.
    4. Passwords are hashed with SHA-256 and cannot be decrypted.
    5. Uberflip may use and share aggregated and anonymized Customer Data. The data will be processed to ensure it cannot be used to identify a single Customer or end-user.
    6. Uberflip uses Customer Data (in its original form) only as necessary to provide the Service to Customer including any ancillary services such as customer support, as provided in the Agreement.
    7. Customer Data is stored only in the Service production environment.
    8. Customer Data for Uberflip’s Content Experience Platform is stored primarily in the ca-central-1 AWS region, with encrypted backups in the us-east-1 region. Customer Data for Uberflip’s SnapApp Platform is stored primarily in the us-east-1 region.
    9. Uberflip creates and maintains flow diagram(s) indicating how Customer Data flows through the Service (“Flow Diagrams”) and can provide Flow Diagrams upon Customer’s reasonable request. Flow Diagrams are Uberflip Confidential Information.
    10. Uberflip may transfer Customer Data to one of its sub-processors for specific purposes. Those sub-processors are listed on https://uberflip.com/legal/sub-processors/. The Customer may subscribe to the list to be notified by email of any changes as soon as they occur.
    11. Uberflip will vet all sub-processors prior to allowing sub-processors to process any Customer Data and require that all sub-processors adhere to similar standards as in this agreement.
  2. Encryption and Separation of Customer Data
    1. The Service in the production storage environment always encrypts Customer Data while at rest with AES 256-bit encryption.
    2. The Service encrypts traffic with Transport Layer Security (“TLS” AKA “SSL”) minimum version 1.1 when communicating with outside partners across untrusted networks such as the public internet.
    3. Customers may enable TLS communication between their Service and the end-user by either providing a certificate, or requesting Uberflip obtain a TLS certificate on their behalf.
  3. Service Infrastructure Access Management
    1. Access to the systems and infrastructure that support the Service is restricted to Uberflip Personnel who require such access as part of their job responsibilities.
    2. Unique User IDs are assigned to Uberflip Personnel requiring access to the Uberflip servers that support the Service.
    3. Uberflip systems and infrastructure is only accessible via an SSL VPN with multi-factor authentication (“MFA”), and individual SSH keys.
    4. Unauthorized access attempts against the VPN server (“Brute force attacks”) are mitigated with an auto-lockout policy, which requires a set amount of time to pass before the account is able to login – even with the correct password.
    5. Access privileges of departed Uberflip Personnel are disabled promptly. Access privileges of persons transferring to roles requiring reduced privileges are adjusted accordingly.
    6. User access to the systems and infrastructure that support the Service is reviewed annually.
    7. Compute instances within the Cloud Provider network have security groups with deny-all default policies and only enable required network protocols between all networks and instances.
    8. Uberflip uses principals of least privilege, and segregation of duties when designing access controls.
  4. Workstation Security
    1. Uberflip Personnel are required to use company supplied and managed workstations when connecting to any production or development system.
    2. All workstations are centrally managed, have anti-virus which detects threats real-time, and updates its signatures daily. Users can not disable the anti-virus.
    3. Passwords are required on all workstations, with auto-lock when the computer sleeps, or the screen saver is engaged.
    4. Uberflip Personnel with access to production networks are required to enable full disk encryption.
  5. Data Classification
    1. All data under Uberflip’s management is classified as to its sensitivity and handled appropriately.
    2. Uberflip conforms to GDPR, PIPEDA, and CCPA. As such, Uberflip may delete any end-user data upon request.
    3. Uberflip’s Data Classification Guidelines can be shared with the Customer upon request and is considered Confidential Information to Uberflip.
  6. Risk Management
    1. Uberflip conducts risk assessments of various kinds throughout the year, including self and third-party assessments and tests, automated scans, and manual reviews.
    2. Results of assessments are reported to the Data Privacy Officer (“DPO”).
    3. Changes to controls and threat mitigation strategies are evaluated and prioritized for implementation on a risk-adjusted basis.
    4. Threats are monitored through various means, including threat intelligence services, vendor notifications, and trusted public sources.
  7. Vulnerability Scanning and Penetration Testing
    1. Uberflip conducts annual penetration testing by an independent third party to confirm the security of its Content Experience Platform.
    2. Subject to Uberflip’s approval, Customers may also perform their own penetration testing and security scans. Customers are required to provide the results of the scans to Uberflip.
    3. Scans that detect vulnerabilities are evaluated by employees using Uberflip-defined risk criteria to triage and prioritize.
    4. Vulnerabilities are prioritized based on potential impact to the Service, with “critical” and “high” vulnerabilities typically being addressed within 30 days of discovery and “medium” vulnerabilities typically being addressed within 90 days of discovery.
    5. Security management monitors or subscribes to trusted sources of vulnerability reports and threat intelligence.
  8. Remote Access & Wireless Network
    1. All access by Uberflip Personnel to the VPC requires successful authentication through a secure connection via SSL VPN. For Uberflip’s Content Experience Platform this is done via multi-factor authentication (“MFA”).
    2. Uberflip corporate offices, including LAN and Wi-Fi networks in those offices, are considered to be untrusted networks.
  9. System Event Logging, Monitoring & Alerting
    1. Monitoring tools and services are used to monitor systems including network, server events, and Cloud Provider API security events, availability events, and resource utilization.
    2. Uberflip infrastructure security event logs are collected in a central system and protected from tampering. Logs are stored for a minimum of 15 months.
    3. All VPCs leverage advanced threat detection tools to monitor and alert for suspicious activities and potential malware.
  10. System Administration and Patch Management
    1. Uberflip maintains system administration procedures for systems that access Customer Data that meet or exceed industry standards, including system hardening, system and device patching (operating system and applications) and threat detection software as well as daily signature updates of same.
    2. Uberflip Security reviews new vulnerabilities announcements and assess their impact to Uberflip based on a Uberflip-defined risk criteria, including applicability and severity.
    3. Applicable security updates rated as “high” or “critical” are typically addressed within 30 days of the patch release and those rated as “medium” are typically addressed within 90 days of the patch release.
  11. Uberflip Security Training and Uberflip Personnel
    1. Uberflip maintains a security awareness program for Uberflip Personnel, which provides initial education, ongoing awareness and requires individual Uberflip Personnel to agree to comply with Uberflip’s Information Security Policy on an annual basis. New hires digitally sign a non-disclosure agreement, and digitally sign to confirm they have read and understood the Uberflip Information Security Policy.
    2. All Uberflip Personnel acknowledge they are responsible for reporting actual or suspected security incidents or concerns, thefts, breaches, losses, and unauthorized disclosures of or access to Customer Data.
    3. Uberflip performs criminal background screening as part of the Uberflip hiring process, to the extent legally permissible.
    4. Uberflip uses secure SDLC practices which includes code reviews, secure data access, and centralized logging.
    5. Uberflip will take measures to ensure that its subcontractors, vendors, and other third parties (if any) that have direct access to the Customer Data in connection with the services adhere to data security standards consistent with this policy.
  12. Physical Security
    1. The Service is hosted with Cloud Providers and all physical security controls are managed by the Cloud Provider. Uberflip reviews the Cloud Provider’s security report to ensure appropriate physical security controls, including:
      1. Visitor management including tracking and monitoring physical access.
      2. Physical access point to server locations are managed by electronic access control devices.
      3. Monitor and alarm response procedures.
      4. Use of CCTV cameras at facilities.
      5. Video capturing devices in data centers with 90 days of image retention.
  13. Service and Data Availability
    1. Uberflip will take all reasonable precautions to provide the service in accordance with the service level terms of the Agreement.
    2. Current status of the Service can be viewed at https://www.uberflip-status.com
    3. Customers can subscribe to the application status page for real-time updates as incidents occur.
    4. Uberflip uses DDoS protection supplied by its Cloud Provider on all production networks.
  14. Disaster Recovery & Business Continuity
    1. Uberflip maintains a Disaster Recovery Plan (“DRP”) for the Service. The DRP is tested annually.
    2. The Uberflip Content Experience Platform is deployed and managed in the ca-central-1 region, using Infrastructure-as-Code (“IaC”) and the Uberflip SnapApp Platform in the us-east-1 region. Backups are performed at least nightly of all production data and replicated to the AWS us-east-1 region, where they are stored in an encrypted format.
    3. Following a declared disaster, Uberflip in it’s sole discretion will re-deploy all infrastructure into another AWS region within North America and restore the latest viable backups. As part of this deployment, the customer may be required to update IPs on their firewalls in order to access the new infrastructure. These IPs will be provided at the time of the disaster.
    4. Uberflip maintains a Business Continuity Plan (“BCP”). The BCP is assessed annually.
  15. Notification of Security Breach
    1. A “Security Breach” is (a) the unauthorized access to or disclosure of Customer Data, except where access was obtained via the customer’s credentials; or (b) the unauthorized access to the backend Uberflip platform.
    2. Uberflip will notify Customer in writing within forty-eight (48) hours of a confirmed Security Breach, which will include a description of the Security Breach and the status of Uberflip’s investigation.
    3. Uberflip will take appropriate actions to contain, investigate, and mitigate the Security Breach.
  16. Uberflip Security Compliance, Certifications, and Third-party Attestations
    1. Uberflip hires accredited third parties to perform audits and to attest to various compliance and certifications annually including SOC 2 Type 2 Attestation Report.
    2. Uberflip is a Canadian company and complies with the Personal Information Protection and Electronic Documents Act (PIPEDA).
    3. Uberflip provides the Customer with the controls required to adhere to its requirements under the GDPR.
  17. Customer Responsibilities
    1. Without detracting from Uberflip’s security obligations in this Security Policy, security of Customer Data is a shared responsibility between Uberflip and Customer. Uberflip provides the Customer with numerous tools to mitigate against brute force attacks against their account, setup SSO, define password and session policies, and IP restrictions on their accounts. Customer is responsible for configuring and maintaining these settings.
    2. Customer acknowledges that Uberflip does not assess the contents of Customer Data and that Customer is responsible for making appropriate use of the Service to ensure a level of security and compliance appropriate for the Customer, managing and protecting its accounts, roles and credentials.
    3. Customer will promptly notify Uberflip if a user credential has been compromised or if Customer suspects possible suspicious activities that could negatively impact security of the Service or Customer’s account.
    4. Customers are responsible to backup and maintain copies of their Customer Data. Uberflip’s backups are “Infrastructure level”, which can not be used to restore a single-customer’s data.

Data processing amendment (DPA)

Last Updated: April 2, 2019

Please contact dpo@uberflip.com if your organization is established in the European Union (EU) or subject to the GDPR and requires a DPA. Please click here to download our DPA for your review.

Privacy policy

Last Updated: June 5, 2020 (supersedes Privacy Policy May 26, 2020)

Flyp Technologies Inc. d/b/a Uberflip (“Uberflip”, “we”, “us”, “our”) is committed to the protection of the personal information. As part of this commitment, we have set out this Privacy Policy to describe the manner in which we treat the personal information that we maintain on behalf of our customers (“Customers”), as well as the personal information we collect, such as through our website at www.uberflip.com (“Website”).

Collection & Use of Information

Information we maintain on behalf of our Customers

Uberflip helps marketers and other Customers create, manage and optimize the content experience on their websites by aggregating existing content (blogs, social media, eBooks, videos and more) into an online content hub (“Hub”), and also provides other content management solutions to Customers (collectively, the “Services”).

Our Customers choose what information to collect or make available through the Services we provide on their behalf, and the Customer’s end users interacting with the content or Services (“Audience Members”) may upload or post information to the Services (collectively, “User Content”). Depending on the Customer, User Content may contain personal information. We receive and maintain this information on behalf of our Customers in order to provide the Services, and we do not use such information for any other purpose except as set out herein or as otherwise required or permitted by applicable law. We rely on our Customers to comply with applicable privacy and related laws when collecting, using or disclosing personal information in connection with the Services.

If you signed-up to receive marketing communications from one of our Customers and now wish to unsubscribe, please contact the Customer directly as we are not responsible for the sending of such communications.

To learn more about information we maintain on behalf of Customers, see also the sections entitled “Website Data and Analytics” and “Online Advertising” below.

Information we collect and use

  • Some of our Services require you to create an account. If you create an account, we collect information such as name, company name and contact information (including email address, mailing address, telephone number), payment card information, as well as a user name and password that you provide. We use this information in order to provide the Services you request and to process payments. We may also use this information to offer you tailored content within some of our Services.
  • If you sign-up for a free trial, demo, event, webinar or other offer, we may collect your name, job title, and business contact information (including email address, phone number) and certain information about your company. We use this information to contact you and otherwise facilitate or provide you with your offer.
  • If you sign-up to receive marketing communications from Uberflip, we collect your name and email address in order to send you mail or e-mail regarding products and services that we believe are of interest to you. Similarly, if you subscribe to receive email notifications regarding a discussion on our Website, we collect your email address in order to send you the notifications you request. You may also be added to our marketing list when you create an Uberflip account. If you do not want to continue to receive such marketing and promotional communications from us, you may “opt-out” at any time by using the unsubscribe mechanism in any of our emails or by contacting us as set out under “Contact Us” below http://mktg.uberflip.com/email-preferences.html). Please note that you may continue certain transactional and account-related messages from us.
  • If you apply for a job at Uberflip, you may provide us with certain personal information about yourself (such as that contained in a resume, cover letter, or similar employment-related materials). We use this information for the purpose of processing and responding to your application for current and future career opportunities.
  • If you contact us with a question, comment or complaint, we may collect your name and business contact information (such as your email address or mailing address) in order for us to respond to your request. We may also keep a record of the correspondence in order to assist you in the future.
  • If you post or otherwise provide us with comments, suggestions and other feedback, we may use your comments, suggestions or feedback to monitor and/or improve our products, Services and Website.

Website Information and Analytics

In general, you can visit our Website or a Hub we maintain on behalf of one of our Customers (the “Websites”) without indicating who you are or submitting any personal information. However, we collect and/or maintain the IP (Internet protocol) addresses of all visitors to the Websites and other related information such as page requests, browser type, operating system and average time spent on the Websites. We use this information to help us understand Website activity and to monitor and improve the Websites.

Cookies & Similar Technologies: The Websites use a technology called “cookies”. A cookie is a tiny element of data that the Websites can send to your browser, which may then be stored on your hard drive so that you can be recognized when you return. We use cookies on the pages on the Websites where you are prompted to log in or that are customizable. If you have registered with the Websites, these cookies may let us know who you are and identify your browser as one that has visited the Website before and may be necessary to access your account information (stored on our computers) in order to deliver products and personalized services. We also use cookies to provide us and our service providers with information about your use of the Websites that we will use to personalize the Websites or other content in accordance with your interests and preferences (e.g. language or currency preference) and improve your user experience. This may involve enhancing data by using third party data to build a visitor profile of You. You may set your Web browser to notify you when you receive a cookie or to not accept certain cookies. However, if you decide not to accept cookies from the Websites, you may not be able to take advantage of all of the features of the Websites. Our Cookie Policy can be found here – https://www.uberflip.com/legal/cookie-policy/

Tracer Tags & Web Beacons: The Websites may also use a technology called “tracer tags” or “Web Beacons”. This technology allows us to understand which pages you visit on the Websites. These tracer tags are used to help us optimize and tailor the Websites for you and other future visitors to the Websites.

Analytics: We collect information about the Services that you use and how you use them, which may include the pages most read, time spent, zoom pattern, search terms and other engagement data on the Websites. We use this information in order to better understand and improve the Uberflip Website. When you visit one of our Customer’s Hubs, we collect this information on behalf of our Customer and provide our Customer with reports in aggregate form regarding the usage of their Website so that they can better understand the engagement of Audience Members who access and interact with their User Content. We may also combine this information with contact information you input on our Customer’s Hub or Website and data from third party providers, and provide it to the Customer so that they may better understand your preferences and tailor their communications to you.

We provide analytics to our Customers through our own proprietary dashboards. We may also use a third party such as Google Analytics to help us gather and analyze information about the areas visited on the Websites in order to evaluate and improve the user experience and the convenience of the Websites, and to help us evaluate some of the specific information related to your Website visits. For more information or to opt-out, see “How Google uses data when you use our partners’ sites or apps”.

Links: Our Website may contain links to other websites that we do not own or operate. Also, links to our Website may be featured on third party websites on which we advertise. Except as provided herein, we will not provide any of your personal information to these third parties without your consent. We provide links to third party websites as a convenience to the user. These links are not intended as an endorsement of or referral to the linked websites. The linked websites have separate and independent privacy policies, notices and terms of use, which we recommend you read carefully. We do not have any control over such websites, and therefore we have no responsibility or liability for the manner in which the organizations that operate such linked websites may collect, use or disclose, secure and otherwise treat your personal information.

Online Interest-Based Advertising

We also work with third-parties such as ad networks and other advertising companies that use their own tracking technologies (including cookies, tracer tags, web beacons and pixel tags) on our Website and other websites in order to provide you with tailored advertisements on our behalf across the Internet (including social media websites and apps). These companies may collect information about your activity across your different devices on our Website and third-party websites (such as web pages you visit and your interaction with our advertising) and use this information to deliver ads that are more relevant and tailored to you on our Website and third party websites.

We adhere to the Digital Advertising Alliance of Canada’s (DAAC) Self-Regulatory Principles for Online Behavioral Advertising. To learn more about this interest-based advertising practice and to understand your options, including how you can opt-out of receiving interest-based ads from participating third-party advertising companies, please visit the Digital Advertising Alliance website at http://www.aboutads.info/choices/ or the Digital Advertising Alliance of Canada website at www.youradchoices.ca/choices.

To successfully opt-out, you must have cookies enabled in your web browser. Please see your browser’s instructions for information on cookies and how to enable them. Your opt-out only applies to the web browser you use so you must opt-out of each web browser on each device that you use. Once you opt out, if you delete your browser’s saved cookies, you may need to opt-out again.

Please note that even if you opt-out interest-based advertising by a third party, these tracking technologies may still collect data for other purposes including analytics and you will still see ads from us, but the ads will not be targeted based on behavioral information about you and may therefore be less relevant to you and your interests.

To opt-out of Uberflip specific advertising please visit https://www.uberflip.com/legal/#cookie-policy

Social Media

We may offer Customers or Audience Members with the opportunity to engage with content or Hubs on or through third-party social networking websites, plug-ins and applications. When Audience Members engage with content on or through third-party social networking websites, plug-ins and applications, they may allow us to have access to certain information associated with their social media account (e.g., name, username, email address, profile picture, gender) to deliver the content or as part of the operation of the website, plug-in or application. When Audience Members provide information from their social media account, we may use this information to personalize their experience on the Website and on the third-party social networking websites, plug-ins and applications, and to provide other products or services the Audience Member may request.

YouTube Integration. We use YouTube API Services for Uberflip’s YouTube integration. Should a Customer avail of Uberflip’s YouTube integration, Customer should review Google’s Privacy Policy at http://www.google.com/policies/privacy, which is applicable for the purpose of the integration. If you choose to use the integration, we will collect and store Customer’s video IDs from Customer’s channels or playlists and length of videos, as well as information obtained through the use of cookies (please refer to the section on “Cookies & Similar Technologies” above for further details). We also allow third parties to serve content, including advertisements as further detailed under the section “Online Interest-Based Advertising”.

In addition to the procedure for access and deletion outlined in this Policy, you may also revoke access to data via the Google security settings page at https://security.google.com/settings/security/permissions.

Location and Device Information

If you use a location-enabled service, we may obtain your consent to collect information about your device’s physical location in order to provide you with relevant content and to better understand our Customers and Audience Members. We may collect this information based on IP address or nearby Wifi access points and cell towers. You can change your device settings to allow or block the collection of location information. Please note that if you turn off the collection of location information, we may not be able to provide all services to you.

Transfers and Disclosures of Personal Information

As a matter of practice, Uberflip does not disclose, trade, rent, sell or otherwise transfer our customers’ personal information, except as set out in this Privacy Policy or in the Terms of Use our Customers enter into with Uberflip.

Hubs: If you interact with a Hub, we collect information you provide as postings (such as any comments you may post). Please remember that any information that you provide in these comment areas is accessible to the public, and you should exercise caution when deciding to disclose any personal information about yourself or anyone else.

Service Providers: In connection with our Website or the Services we provide to our Customers, we may transfer personal information to third-party service providers who provide services on our behalf in Canada, the United States or other jurisdictions. Our service providers are given the information they need to perform their designated functions, and we do not authorize to use or disclose personal information for their own purposes. For example, we may use service providers to host the Website or Hubs, send email or other communications, generate leads, process payments, provide analytics and advertising services, moderate online discussions, and run our contests and surveys. For additional information about the way in which our service providers treat personal information, please contact us as set out in the “Contact Us” section below.

Sale of Business: We may disclose or transfer personal information to a third party as an asset in connection with prospective or completed a merger or sale (including transfers made as part of insolvency or bankruptcy proceedings) involving all or part of Uberflip, or as part of a corporate reorganization or stock sale or other change in corporate control.

Legal obligations: We, our affiliates and our Canadian, U.S. and other service providers may provide your personal information in response to a search warrant or other legally valid inquiry or order, in the case of a breach of an agreement or contravention of law, for the purposes of detecting, preventing or suppressing fraud, or as otherwise required or permitted by applicable Canadian, US or other law (which may include lawful access requests by courts, law enforcement and government institutions in such foreign jurisdictions). Where disclosure of our Customer’s information is required by applicable law, we promptly notify our Customer prior to complying with such requirements (to the extent we are not prohibited from doing so).

We may also disclose personal information where necessary for the establishment, exercise or defense of legal claims and to investigate or prevent actual or suspect loss or harm to persons or property.

Aggregate Data: We may share aggregated, non-personally identifiable information publicly or to potential Customers, such as to show trends about the general use and effectiveness of our services.

Safeguarding

We understand that data security is a critical issue for our Customers. We maintain reasonable administrative, technical and physical safeguards in an effort to protect personal information in our custody and under our control against unauthorized access, use, modification and disclosure.

Your online access to certain of your personal information may be protected with a password you select. We strongly recommend that you do not disclose your password to anyone. We will never ask you for your password in any unsolicited communication (such as letters, phone calls or email messages).

Retention

We have personal information retention processes designed to retain personal information for no longer than necessary for the purposes for which it was collected or provided to us or to otherwise meet legal requirements.

Accuracy & Access

If we receive a request from an individual to access or update personal information we maintain on behalf of a Customer, we will direct that individual to the relevant Customer. We will assist our customers wherever possible in responding to individual access requests.

Subject to limited exceptions prescribed by law, you may otherwise request access, updating or correction of your personal information under our control by submitting a written request and satisfactory identification to Uberflip at the contact information set out under Contact Us below.

California Residents. Uberflip collects Personal Information of California consumers for the business purposes described in this Privacy Policy. The California Consumer Privacy Act (the “CCPA”) provides California consumers additional rights with respect to their Personal Information. California consumers may make a request pursuant to their rights under the CCPA by contacting us at dpo@uberflip.com or by the means set forth below under “Contact Us”.

Changes to this Privacy Policy

This Privacy Policy may be updated periodically to reflect changes to our personal information practices. The revised Privacy Policy will be posted on this Website. We strongly encourage you to please refer to this Privacy Policy often for the latest information about our personal information practices.

Contact Us

Please contact Uberflip at support@uberflip.com or by phone: toll free (US/Canada): (1)-888-694-2946, international: (1)-416-900-3830, option 2, with any questions or concerns that you may have about this Privacy Policy or the manner in which personal information is collected, used, disclosed and otherwise managed by Uberflip.

Sub-processors

As part of Uberflip’s ongoing commitment to the privacy and protection of our customers’ personal data, please click here for the lists of sub-processors that we work with currently.

Uberflip Trial

Terms of Service

Last updated: July 20, 2020

These Terms of Service (together with the Order Form, this “Agreement”) governs your access to and use of: (i) our proprietary content experience software as-a-service platform (the “Uberflip Platform”); and (ii) any documentation made available by us to you in respect of the Uberflip Platform (such documentation together with the Uberflip Platform, the “Uberflip Solution”). This Agreement forms a binding legal agreement between Flyp Technologies Inc. d.b.a. Uberflip. (“Uberflip”, “us”, “we”, “our”) and Trial Customer. The term “Trial Customer” refers to the organization that Trial Customer represents in agreeing to this Agreement as stated on the Order Form. If Trial Customer’s account is being set up by someone who is not formally affiliated with an organization, Trial Customer is the individual creating the account. The “Parties” refer to Uberflip and Trial Customer and “Party” refers to each of Uberflip and Trial Customer.

BY USING THE UBERFLIP SOLUTION, TRIAL CUSTOMER ACKNOWLEDGES THAT TRIAL CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(k). IF TRIAL CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, TRIAL CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE UBERFLIP SOLUTION.

TRIAL CUSTOMER REPRESENTS AND WARRANTS TO UBERFLIP THAT TRIAL CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF TRIAL CUSTOMER IS USING THE UBERFLIP SOLUTION ON BEHALF OF ANOTHER PERSON, TRIAL CUSTOMER HEREBY REPRESENTS AND WARRANTS TO UBERFLIP THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

This Agreement is entered into the earlier of (the “Effective Date”): (a) the date Trial Customer first uses any part of the Uberflip Solution; and (b) the date Customer agrees to be bound by this Agreement.

1. Definitions.

  1. Content” means any data, information, records, files and content that you load, transmit to or enter into the Uberflip Platform or otherwise provide to us, and any and all intellectual property rights in any of the foregoing.
  2. De-Identified Information” means anonymized and aggregated data that does not contain any Personal Information.
  3. Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing in any form or medium, and “Modify” has a corresponding meaning.
  4. Personal Information” means information about an identifiable individual that is transferred by Trial Customer, or its permitted agents, to Uberflip hereunder.

2. Uberflip Platform Availability.

  1. Provisioning of the Uberflip Platform. Subject to your compliance with your obligations hereunder, we will use commercially reasonable efforts to make available the Uberflip Platform to you for the sole purpose of evaluating the Uberflip Platform.
  2. Limitation, Suspension, or Termination of Access; Uberflip Platform Upgrades and Scheduled Downtime. We may, at our discretion and without notice: (i) suspend, terminate or limit your access to, or use of, the Uberflip Platform or any component thereof; or (ii) Modify the Uberflip Platform.

3. Intellectual Property

  1. Ownership of Uberflip Property. We expressly reserve all rights (including intellectual property rights), title, and interest in the Uberflip Platform (or any part thereof), all De-Identified Information and all other materials or content provided by us under this Agreement, including any and all Modifications to any of the foregoing (the “Uberflip Property”). Except as expressly set out in this Agreement, all rights, title and interest in the Uberflip Property will remain with us or our third party suppliers, as applicable. The Uberflip Property is licensed and not “sold” to you.
  2. License to Content Provided by Customer. You grant to us a non-exclusive, royalty-free, irrevocable, fully paid-up, perpetual, sublicensable, transferrable and worldwide license during the Term to: (i) access, use, store, process and Modify the Content to perform our obligations or to exercise our rights hereunder; and (ii) to generate De-Identified Information.

4. Uberflip Usage and Platform Usage Restrictions.

  1. Trial Customer ID. Uberflip will issue user identification and password (“User ID”) to Trial Customer for each individual Trial Customer wishes to have access to and use of the Uberflip Solution (each, a “User”). Trial Customer may only identify its partners, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Users. Users may only access and use the Uberflip Platform through a User ID issued to Trial Customer. Trial Customer will not allow Users to share their User ID with any other person. Trial Customer is responsible for any and all activity occurring under the User IDs associated with Users. Trial Customer is responsible for all use of the Uberflip Solution by Users and for maintaining the confidentiality of their User ID and will promptly notify Uberflip of any actual or suspected unauthorized use of the Uberflip Solution. Uberflip reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.
  2. You will not, and will not permit any other person to:
    1. use the Uberflip Platform other than as permitted by this Agreement;
    2. use the Uberflip Platform to upload, collect, transmit, store, use, disclose or process any Content: (A) that you do not have the lawful right to upload, collect, transmit, store, use, disclose or process; or (B) in a manner that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party;
    3. reproduce, copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the Uberflip Platform or any part thereof or otherwise attempt to discover any source code to the Uberflip Platform; or
    4. use the Uberflip Platform for the purpose of building a similar or competitive product or service.

5. Confidential Information.

  1. Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential, including Personal Information; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing, the terms and conditions of this Agreement and all Uberflip Property (including any part thereof), whether marked as “confidential” or not, will be Uberflip’s Confidential Information.
  2. Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own employees or contractors having a “need to know” and that have entered into written obligations of confidentiality no less protective of us than this Agreement; (ii) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any confidentiality legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 5 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure. Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of this Agreement, Recipient will return or destroy all Confidential Information of Discloser in its possession or control and cease all further use thereof. Notwithstanding the foregoing, we may retain a copy of any Confidential Information of yours (including Content) for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory or reasonable internal back-up or archival practices or policies.
  3. Exceptions to Confidentiality. Notwithstanding Section 5(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) in the case of us, to its employees, contractors, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to our business; or (iii) in the case of us, to potential assignees, acquirers or successors of ours if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of ours.

6. Privacy.

  1. Access to your User Account Information. During the course of making available the Uberflip Platform to you we may host, disclose, collect, store and use Personal Information of your authorized users granted access by you to the Uberflip Platform (each, a “User”) in accordance with our Privacy Policy, including: (i) if required by applicable law or any governmental or regulatory authority; or (ii) if necessary to perform our obligations or to exercise our rights under this Agreement, including to monitor usage by your Users, and detect, investigate or prevent any actual or potential violation of this Agreement, including the restrictions set out in Section 4 (Uberflip Platform Usage Restrictions).
  2. Personal Information. The primary purpose of the Uberflip Platform is not to host, process or store Personal Information of third parties uploaded by you. To the extent that you upload such Personal Information you are responsible for ensuring that your use of the Uberflip Platform and provision of such Personal Information is in compliance with all applicable privacy laws and that you have provided all necessary notice, obtained all necessary consents and otherwise have all authority to provide such Personal Information to us for the purposes of this Agreement.
  3. Privacy Policy. Customer understands that any Personal Information will be treated in accordance with Uberflip’s Privacy Policy, the then-current version is accessible via https://uberflipdev.wpengine.com/legal/#privacy-policy (the “Privacy Policy”). We reserve the right to update the Privacy Policy and an up-to-date version of our then current Privacy Policy will be made accessible on our website.

7. Warranty; Disclaimer; Indemnity.

  1. Trial Customer Warranty Regarding Content. You represent and warrant to, and covenant with us that the Content will only contain Personal Information in respect of which you have obtained all applicable third party consents, authority and permissions, and have made all applicable third party disclosures, in each case as required by applicable laws, regarding all collection, storage, access, use, disclosure, transmission and processing of Personal Information, including the processing of Personal Information to create De-Identified Information.
  2. GENERAL DISCLAIMER. THE UBERFLIP SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY US TO YOU ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND.
  3. Indemnity. You will defend, indemnify and hold harmless us, our employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and reasonably attorney’s fees), directly or indirectly arising from or in connection with, or relating to: (i) the Content; (ii) your breach of any of your representations under Section 7(a); (iii) your use of the Uberflip Solution contrary to this Agreement or any documentation made available by us in respect of the Uberflip Solution; or (iv) your misrepresentation, criminal behaviour, wilful misconduct or gross negligence. You will fully cooperate with us in the defense of any claim defended by you pursuant to your indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of ours.

8. Limitation of Liabilities.

  1. IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED ONE HUNDRED UNITED STATES DOLLARS. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL; (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY.

9. Term and Termination; Survival.

  1. Term and Termination. This Agreement will commence on the Effective Date and continue until the earlier of: (i) the date that this Agreement is terminated earlier in accordance with its terms; or (ii) sixty (60) days from the Effective Date the Uberflip Solution or any subsequent written amendment signed by both parties amending such trial or evaluation end date (the “Term”). At any time during the Term, either Party may terminate this Agreement with immediate effect at any time by providing written notice to the other Party. Unless Trial Customer has subscribed for a paid service Uberflip shall within 90 days after the effective date of termination destroy all Confidential Information of the Trial Customer.
  2. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Intellectual Property), Section 5 (Confidential Information), Section 6 (Warranty; Disclaimer; Indemnity), Section 8 (Limitation of Liabilities), Section 9(b) (Survival), and Section 10 (General Provisions).

10. General Provisions.

  1. Notices. Notices must be in writing and sent: (i) if to us, to the addresses set out in the first paragraph of this Agreement; and (ii) if to you, to the address we have on file for you.
  2. Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.
  3. Entire Agreement. The Agreement constitutes the entire agreement governing your use of the Uberflip Solution between us and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral, including any non-disclosure and pilot agreements. The Agreement will not be modified except by written agreement of the Parties or by us to the extent set out in the Agreement.
  4. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.

Services Agreement

Uberflip Services Agreement

Last Updated: June 5, 2020

This services agreement (the “Agreement”) is between Flyp Technologies Inc. d.b.a. Uberflip (“Uberflip”) and Customer as of the Effective Date (as defined in Section 1 below) and governs Customer’s use of the Platform and Services as specified in the applicable ordering documents signed by the parties, including any exhibits thereto (each, an “Order Form”, which are incorporated by reference herein). In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control. Uberflip reserves the right from time to time, to update the Agreement in its sole discretion. If Uberflip does so, it will post the modified Agreement at https://uberflipdev.wpengine.com/legal/services-agreement.

1. Definitions.

(a) “Agreement” has the meaning set out in the introductory paragraph of this Agreement.

(b) “Billing Period” means the date as set out in the Order Form.

(c) “Customer Data” has the meaning ascribed to it in Section 4(b), and includes Personal Information (if any).

(d) “Effective Date” means the last date on which both Parties have signed the applicable Order Form.

(e) “Feedback” means any suggestions, enhancement requests, recommendations or other feedback provided by Customer to Uberflip relating to the Uberflip Offering or the operation of the Services.

(f) “Fees” means the fees and other charges that apply to Customer’s initial setup and ongoing access to and use of the Services, payable based on Customer’s then-current Subscription Package in the amounts and frequency indicated in the Order Forms or as otherwise communicated by Uberflip to Customer from time to time.

(g) “Initial Term” means the period of time indicated in the Order Form.

(h) “Offering” means, collectively, the Platform and the Services.

(i) “Personal Information” means information about an identifiable individual transferred by Customer or its permitted agents to Uberflip hereunder, and any personal information derived or otherwise create by Uberflip in connection therewith.

(j) “Platform” means, collectively, the Website and all systems of Uberflip and Uberflip’s third-party suppliers that are used in the provision of the Services.

(k) “Services” has the meaning set out in the Order Form.

(l) “Subscription Package” means the products and services package that Customer subscribes for. The initial Subscription Package as of the Effective Date is indicated in the Order Form. During the Term, Customer may upgrade (but not downgrade) that initial Subscription Package using any then-available interfaces of the Platform.

(m) “Term” means the duration of this Agreement.

(n) “Website” means, collectively, the Uberflip websites, including the website located at: http://uberflipdev.wpengine.com.

2. Services.

(a) Provision of the Services. Uberflip will make the Services available to Customer on the terms and conditions set out in this Agreement and the applicable Order Form and conditional on Customer: (i) making commercially reasonable efforts to cooperate with the reasonable requests of Uberflip; (ii) providing Uberflip with access to any required systems of Customer or third parties (and making all required third-party disclosures and obtaining all required third party consents in respect of such access) which Customer wishes the Platform to obtain data from or provide data to in the course of providing the Services, and (iii) to the extent Customer Data includes Personal Information, providing all notices and disclosures and obtaining all necessary consents and authority in respect of such Personal Information as required under and in compliance with applicable privacy law in order for Uberflip to provide the Services on behalf of Customer and process Personal Information in the manner set out in the Uberflip Privacy Policy.

(b) Provisioning of the Platform. Uberflip will: (i) provide to Customer basic support through the Website as described more fully in Section 8 (Customer Support); and (ii) use commercially reasonable efforts to make the Platform reasonably available with minimal downtime; except for: (A) downtime and scheduled upgrades (as described more fully below); and (B) unavailability caused by circumstances beyond Uberflip’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or the unavailability of any third-party provided goods or services.

(c) Platform Updates and Scheduled Downtime. Uberflip may update the functionality and user interface of the Platform from time to time in its sole discretion as part of its ongoing mission to improve the Offering and the use of the Offering by Uberflip’s other customers. Uberflip may from time to time schedule downtime for maintenance and upgrades. Uberflip will provide advance notice for scheduled downtime, except for scheduled downtime during the hours of Sunday at 5:00 am ET to 11:00 am ET (the “Maintenance Window”), or where such downtime is required, in Uberflip’s sole discretion, in order to conduct urgent maintenance or upgrades.

(d) No Responsibility for Data Storage and Backup. Uberflip cannot guarantee that the Platform will provide regular data backups of any Customer Data stored on it. It is Customer’s responsibility to backup onto Customer’s own local system all Customer Data, including all data, files and records that Customer submits to Uberflip.

3. License Grants.

(a) License Grants by Uberflip. Subject to the terms and conditions of this Agreement and Customer’s compliance therewith, Uberflip grants to Customer a revocable, non-exclusive, non-transferable license during the Term to access and use the Platform over the Internet and through the then available standard interface for the Platform in connection with receiving the Services in accordance with this Agreement.

(b) License Grant by Customer. Subject to the terms and conditions of this Agreement, including Uberflip’s confidentiality obligations, Customer grants to Uberflip a transferrable, sublicenseable, royalty-free, fully paid-up, worldwide license to copy, use, reproduce, modify, develop, access, collect and store the Customer Data solely for the purpose of providing the Services.

4. Reservation of Rights.

(a) Rights Reserved by Uberflip. Uberflip expressly reserves all rights in the Services, the Platform and all materials (other than Personal Information) provided by Uberflip hereunder and not specifically granted to Customer (“Uberflip Property”). All right, title and interest in the Uberflip Property, as well as any update, modification, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Uberflip (or Uberflip’s third party suppliers, as applicable). The Uberflip Property is licensed on a subscription basis on the terms and conditions of this Agreement and not “sold” to Customer.

(b) Rights Reserved by Customer. Customer expressly reserves all rights in any data, information, records and files that Customer (or any User) loads, transmits to or enters into the Platform, including data that the Platform is configured to obtain from Customer’s servers or systems or from third parties on Customer’s behalf (the “Customer Data”), subject to the license that Customer grants Uberflip in accordance with the provisions of this Agreement, and provided that Customer does not acquire any intellectual property rights in the Services, the Platform or any elements of any of the foregoing.

5. Privacy Policy; Internet Security Disclaimer; Limitation, Suspension or Termination of Access.

(a) Privacy Policy. To the extent that Customer Data may contain any Personal Information, Uberflip will collect, use, disclose such Personal Information for the purposes authorized under this Agreement and in accordance with Uberflip’ privacy policy located at: uberflipdev.wpengine.com/privacy (the “Privacy Policy”). The Privacy Policy is hereby incorporated by reference and forms part of this Agreement.

(b) Internet Security Disclaimer. As between Uberflip and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer understands that the technical processing and transmission of Customer Data is fundamentally necessary to use of the Services. Therefore, Customer expressly consents to Uberflip’s storage of Customer Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Uberflip. Customer acknowledges and understands that Customer Data may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, telephone or other electronic means. Uberflip is not responsible for any Customer Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by Uberflip, including, the Internet, third party websites, and Customer’s local network. Customer agrees that Uberflip is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet, and Customer waives any and all claims against Uberflip in connection therewith.

(c) Limitation, Suspension or Termination of Access. In addition to any other suspension or termination rights of Uberflip pursuant to this Agreement, certain extraordinary circumstances may require Uberflip to suspend, terminate or limit (as appropriate and as determined in Uberflip’s sole discretion) Customer’s access to or use of the Platform or the Services, or any component thereof, without notice in order to: (i) prevent any misuse or abuse of the Offering; (ii) prevent any damage to, or degradation of the integrity of Uberflip’s systems or Uberflip Offering; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect Uberflip from potential legal liability or harm to its reputation or business. Uberflip also reserves the right to approve, reject, cancel or remove any Customer Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services at any time and for any reason in Uberflip’s sole discretion, and Uberflip will not be liable or responsible for exercising this right. Uberflip will use commercially reasonable efforts to notify Customer of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Uberflip will promptly restore Customer’s access to the Offering as soon as the event giving rise to the limitation or suspension has been resolved, as determined in Uberflip’s sole discretion. Nothing contained in this Agreement will be construed so as to limit Uberflip’s ability to take action or invoke remedies, or act as a waiver of Uberflip’s rights in any way with respect to any of the foregoing activities. Uberflip will not be responsible for any loss or damages incurred by Customer as a result of any limitation, termination or suspension of access to or use of the Platform or the Services under this Section.

6. Customer Responsibilities and Restrictions.

(a) Customer ID. Upon Customer’s request, but subject to any applicable limitations associated with Customer’s Subscription Package, Uberflip will issue user identification and password (“User ID”) to Customer for each individual Customer wishes to have access to and use of the Offering (each, a “User”). Customer may only identify its partners, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Users. Users may only access and use the Platform and the Services through a User ID issued to Customer. Customer will not allow Users to share their User ID with any other person. Customer is responsible for any and all activity occurring under the User IDs associated with Users. Customer is responsible for all use of the Offering by Users and for maintaining the confidentiality of their User ID and will promptly notify Uberflip of any actual or suspected unauthorized use of the Offering. Uberflip reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.

(b) Customer Responsibilities and Restrictions. Customer agrees that Customer is responsible for the compliance by the Users with this Agreement and for the Users’ use of the Offering, as well as for ensuring that the Users maintain the confidentiality of their User IDs. Customer agrees that Customer is responsible for all charges incurred by the Users in connection with access to or use of the Offering and generally for any activity occurring through a User ID. Without limiting the generality of any of the foregoing, Customer agrees that Customer will not, and will not permit any person to:

(i) use the Offering other than as permitted by this Agreement;

(ii) use the Offering to send, store, publish, post, upload or otherwise transmit any Customer Data in violation of any warranty, representation or obligation of Customer under this Agreement;

(iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering (in whole or in part) available to any third party, other than to the Users, or as otherwise expressly contemplated in accordance with this Agreement;

(iv) use the Offering to upload, collect, transmit, store, use or process, or ask Uberflip to obtain from third parties, any Customer Data: (A) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (B) for which Customer does not have the authority, consent or permission from the individual(s) to whom the Personal Information relates in accordance with applicable privacy legislation; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (D) that is tortious, defamatory, obscene, or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation (including applicable privacy and anti-spam legislation) or would give rise to civil or criminal liability.

(v) use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;

(vi) continue to use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering following a notice from Uberflip of such use;

(vii) attempt to gain unauthorized access to the Offering or its related systems or networks;

(viii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Offering;

(ix) use any data mining, robots or similar data gathering or extraction methods (including electronic address harvesting);

(x) access the Offering for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Offering; or

(xi) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Offering or any part thereof or otherwise attempt to discover any source code or modify the Offering, except as expressly provided for in this Agreement.

(c) Customer Responsibility for Customer Data. Customer has sole responsibility for providing all notices, making all disclosures and otherwise obtaining all necessary consent and authority required by and in accordance with applicable laws regarding Customer Data (including any Personal Information). Uberflip will use the Customer Data it is provided by Customer or third parties in performing the Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.

(d) Removal of Customer Data on Request by Customer. Customer may control the Customer Data stored by the Services, including (subject to Section 10(b)) by deleting or requiring Uberflip to delete all or part of the Customer Data (including Personal Information) at any time.

7. Term.

(a) This Agreement will commence on the Effective Date and continue in effect until the earlier of: (i) the expiration or termination of the last Order Form; and (ii) termination of this Agreement in accordance with the terms hereof.

(b) Any Services shall commence on the Effective Date as specified in the applicable Order Form and shall be valid thereafter for the Initial Term specified in the Order Form unless earlier terminated in accordance with this Agreement. Unless either Party gives the other written notice to the contrary at least 60 days prior to the expiry of the Initial Term or the applicable Renewal Term, the Services will automatically renew on the terms and conditions set out herein for successive renewal terms, each of the same length as the Initial Term, or as otherwise set out in the Order Form (each such renewal term, a “Renewal Term”).

(c) After the Initial Term for Services under an Order Form, Uberflip reserves the right to increase the Fees up to 10% for each new or successive Renewal Term period. Uberflip will provide written notice to Customer of any Fee increases before the Renewal Date.

8. Customer Support.

Uberflip will provide the following support to Customer:

(a) Web and Email Support. Customer will have access to Uberflip’s technical support part of the Website and may use the available interfaces, including any customer support email addresses posted thereon, to submit service requests.

(b) Incident Management. Uberflip will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantially conform to its expected operation; provided that Uberflip will not have an obligation to provide a correction for all such nonconformities.

9. Fees and Payment.

(a) Fees. Customer will pay to Uberflip the Fees in the manner, amounts and frequencies indicated on the Order Form.

(b) Payment. Unless otherwise set out in the Order Form or agreed by the Parties (i) Fees are payable in advance on or after the first day of the applicable Billing Period, and (ii) One-time fees (including any fees for add-ons) are charged at the time in which the applicable Order Form is approved.

(c) Invoices. From time to time, Uberflip may prepare and send to Customer, at the then-current contact information on file with Uberflip, invoices for any Fees and other amounts that have become due and payable under this Agreement. Unless otherwise expressly stipulated in an invoice, Customer agrees to pay all invoiced amounts by: 1) the Additional Payment Terms section set out in the Order Form; or 2) if there no due date specified in the Order Form, the date Customer is in receipt of the invoice.

(d) No Set-Off and Late Payment Charge. Customer may not withhold or “set-off” any amounts due under this Agreement. Unless otherwise indicated in this Agreement, all Fees are non-refundable and Uberflip will provide no full or partial credits or refunds, including in respect of Services that are paid for but not used by Customer. Uberflip reserves the right to suspend Customer’s access to the Offering until all due amounts are paid in full. Any late payment will be increased by the costs of collection (including reasonable legal fees) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof until fully paid.

(e) Certain Taxes. Fees and charges quoted in this Agreement do not include, and Customer will pay, indemnify and hold Uberflip harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Uberflip.

10. Confidential & Proprietary Information.

(a) Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser”, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of this Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that: (a) the terms and conditions of this Agreement and all parts of the Offering, whether marked as “confidential” or “proprietary” or not, will be considered to be Uberflip Confidential & Proprietary Information; and (b) all Customer Data , whether marked as “confidential” or “proprietary” or not, will be considered Customer’s Confidential & Proprietary Information; and further provided that Discloser’s Confidential & Proprietary Information (other than Personal Information) does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

(b) Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient will use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10, if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of this Agreement, regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Uberflip may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.

(c) Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

(d) Analytics. Uberflip its subcontractors, agents and third party service providers shall be permitted to access, collect, analyze and use the Customer Data and other information relating to the Services and the Platform to improve and enhance the Services and the Platform and for other development, diagnostic and corrective purposes and disclose such data solely in aggregate or other de-identified form in connection with its business.

11. Customer Warranty; Disclaimer; Indemnity.

(a) Customer Warranty. Customer represents and warrants to, and covenants with Uberflip that: (i) the Customer Data will contain no information about an identifiable individual or information that is otherwise subject to privacy laws (“Personal Information”), except for Personal Information: (A) in respect of which Customer has provided all notices and disclosures and otherwise obtained all necessary consents and authority from all applicable individuals in accordance with applicable laws to enable Uberflip to provide the Services on behalf of Customer and to process Personal Information in the manner set out in the Uberflip Privacy Policy; and (B) that complies with Customer’s representations, warranties and obligations set out in this Agreement; and (ii) Customer will agree to and at all times comply with (and will cause each User to agree to and at all times comply with) all third-party terms and conditions applicable in respect of the Offering, including but not limited to the YouTube Terms of Service located at https://www.youtube.com/t/terms, should Customer avail of Uberflip’s YouTube integration.

(b) Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE OFFERING AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY UBERFLIP TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, UBERFLIP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, UBERFLIP DOES NOT WARRANT THAT THE OFFERING WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, UBERFLIP EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE OFFERING WILL BE ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

(c) Indemnity.

(i) Uberflip agrees to defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party under the laws of the United States, Canada or England and Wales (an “Infringement Claim”), and shall indemnify Customer for any damages and attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, an Infringement Claim; provided that Customer (a) promptly gives Uberflip written notice of the Infringement Claim; (b) gives Uberflip sole control of the defense and settlement of the Infringement Claim (provided that Uberflip may not settle any Infringement Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to Uberflip all reasonable assistance, at Uberflip’ expense. In the event of an Infringement Claim, or if Uberflip reasonably believes the Services may infringe or misappropriate, Uberflip may in its discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (iii) terminate the applicable Order Form for such Services upon written notice and refund to Customer any prepaid Fees covering the remainder of the term of such Order Forms after the effective date of termination. For greater clarity, this indemnity does not apply to Infringement Claims resulting from or arising out of Customer Data, third party content or third party webpages.

(ii) Customer agrees to defend Uberflip and its affiliates against any claim, demand, suit, or proceeding made or brought against Uberflip or any Uberflip affiliate by a third party arising out of or in connection with Customer Data or any use of the Services in violation of this Agreement, and shall indemnify Uberflip and its affiliates for any damages, attorney fees and costs finally awarded against Uberflip or any of its affiliates as a result of, and for amounts paid by Uberflip or any affiliate under a court-approved settlement of, such claim, demand, suit or proceeding; provided that Uberflip (a) promptly gives Customer written notice of the claim, demand, suit or proceeding; (b) gives Customer sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that Customer may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Uberflip and its affiliates of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.

12. Limitation of Liabilities.

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) NEITHER UBERFLIP NOR ITS AFFILIATES SHALL BE LIABLE IN ANY WAY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, PUNITIVE DAMAGES OR PENALTIES (EVEN IF UBERFLIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES), ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE, CHANGE IN SHARE PRICE, LOSS OF ANTICIPATED PROFITS OR LOST BUSINESS. THIS LIMITATION OF LIABILITY APPLIES TO ANY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION THOSE CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELAY IN OPERATION OR TRANSMISSION, WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT, ACTS OR OMISSIONS, NEGLIGENCE, OR UNDER ANY OTHER CLAIM OR CAUSE OF ACTION.

(b) IN NO EVENT SHALL UBERFLIP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.

13. Notices.

Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated in the Order Form and immediately after being received by the other party’s server. Notices must be in writing and sent to the respective email or postal address set out in the Order Form. Uberflip may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer may change its contact information by giving notice to Uberflip and Customer is solely responsible for keeping its contact information on file with Uberflip current at all times during the Term.

14. Termination.

(a) Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party: (i) commits a material breach of this Agreement, and either: (A) fails within 30 days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion; or (B) such material breach is incapable of being cured; or (C) becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.

(b) Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all Fees and other amounts then owing in accordance herewith), including all licenses granted hereunder, will immediately terminate except as provided below; (b) within 30 days after the effective date of termination, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 10 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 4 (Reservation of Rights), Section 6 (Customer Responsibilities and Restrictions), Section 10 (Confidential & Proprietary Information), Section 11 (Customer Warranty; Disclaimer; Indemnity), Section 12 (Limitation of Liabilities), Section 14(b) (Survival), and Section 15 (General Provisions).

15. General Provisions.

(a) Assignment. Customer may not assign this Agreement to any third party without Uberflip’s prior written consent, except that Customer may assign its rights (but not obligations) hereunder to an affiliate of Customer. Uberflip may assign this Agreement, in whole or in part, without Customer’s consent to: (i) any affiliate of Uberflip; or (ii) any third party that purchases all or substantially all of Uberflip’s assets related to the provision of the Services. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon and inure to the benefit of the Parties’ successors and permitted assignees.

(b) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties hereby irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto, Ontario. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

(c) Right to List as a Customer. Customer agrees that Uberflip may utilize Customer’s name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, provided that such approval will not be unreasonably withheld.

(d) Feedback. Uberflip shall be free to use, disclose, reproduce, license or otherwise distribute, make available and exploit the Feedback as it sees fit, entirely without obligation or restriction on account of any intellectual property rights or otherwise.

(e) Compliance with Export Regulations. Customer has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; will indemnify and hold Uberflip harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the Offering. Customer will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

(f) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Uberflip herein mean the right of Uberflip to withhold such consent or exercise such discretion (as applicable) arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer. Unless otherwise indicated in the Order Form, all dollar amounts are in United States Dollars.

(g) Force Majeure. Neither Party will be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder will not be excused by this provision.

(h) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions will remain in full force and effect.

(i) No Waiver. Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.

(j) Independent Contractors. Customer’s relationship to Uberflip is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Uberflip.

(k) Entire Agreement. This Agreement, together with any Order Forms, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

(l) Amendments. No amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, Uberflip may amend this Agreement, in whole or in part by posting notice of such amendment at https://uberflipdev.wpengine.com/legal/services-agreement and become effective as of the date posted, unless otherwise indicated by Uberflip.

(m) English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.