1. Services; Service Level Agreement; Eligibility; Registration.

1.1 Inventory Source, Inc. (DBA Flxpoint) shall provide CUSTOMER access to inventory, order, and financial information via API Integration utilizing Inventory Source, Inc.’s “Flxpoint” product and related technology as set forth herein and in the preceding Statement of Work (the “Software” or the “Services”), and Inventory Source, Inc. shall provide the Software and the Services pursuant to the terms in this Statement of Work Agreement. Use of the Software and the Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Software and the Services are not available to minors.

1.2 To use the Software and the Services, you must submit a complete registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Software and the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Software and the Services. You shall provide current, complete and accurate registration information (including email address and credit card information), and then update the information as required to keep the registration information current, complete and accurate.

1.3 As a subscription service, Inventory Source, Inc. will collect payment information from you during the account setup. By providing such payment methods to Inventory Source, Inc., you are explicitly authorizing Inventory Source, Inc. to charge one or more of these methods as fees are due.

2. Fees and Payment Terms.

2.1 The fees are set forth in this Agreement, and any changes to fees and payment terms shall be mutually agreed in writing between the Parties. You agree to pay us for using the Software and the Services in accordance with our then current fees and payment terms. All fees are payable in U.S. Dollars and will not be treated as paid until actually received by Inventory Source, Inc. in freely available funds. Failure to pay any amounts when due may, in Inventory Source, Inc.’s reasonable discretion, result in your account being suspended or terminated; provided, however, that Inventory Source, Inc. shall not suspend, terminate or otherwise interrupt access to the Software or the Services pursuant to this Section 2.1 without providing CUSTOMER ten (10) business days prior written notice and the opportunity to cure any failure to pay any amounts due.

2.2 Monthly fees and product/service/plans are subject to change in the future with a requirement of a new contract agreed upon by both parties.

2.3 Any claims for refunds or other adjustments to charges on your account must be submitted in writing. Any claim must be submitted within 30 days of the date such charges are placed on your account.

2.4 This Agreement supersedes any other contracts or agreements signed prior to the signing of this Agreement in scope of payment and terms related to the same/similar offerings outlined in prior contracts or agreements.

2.5 Overages and fees will be applied to the credit card on file on the month following the overage. Orders that contain any SKU that can be fulfilled by a connected source will be counted towards your order total. The aggregate sum of Inventory SKUs and Listing SKUs will count towards your SKU limit.

2.6 Payments that are late will be subject to a 5% late fee for every 30 days past due.

3. Conduct.

3.1 Each Party agrees to comply with all applicable laws, statutes, ordinances and regulations related to the provision or use of the Software and the Services. Neither Party may use the Software and the Services to engage in fraud or other illegal activity, or to infringe the intellectual property rights of others.

3.2 You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Software or any transaction conducted on the Software. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or materially limits our ability to provide the Software and the Services. You agree that you will not collect, copy, reproduce, alter, modify, create derivative works, or publicly display any content or information (except for your materials) from the Software without the prior expressed written permission of Inventory Source, Inc. or the appropriate third party. You agree that you will not use any robot, spider, or other automatic device or routine to access or interface with the Software.

4. Inventory Source, Inc. and Third-Party Intellectual Property.

4.1 All content included or available on any user interface (“UI”), such as text, graphics, logos, button icons, images, audio clips and software, is the property of Inventory Source, Inc. and/or third parties and is protected by copyrights, trademarks or other intellectual and proprietary rights except if any of the aforementioned content is the property of and was provided to Inventory Source, Inc. by CUSTOMER. The compilation (meaning the collection, arrangement and assembly) of all content on any UI is the exclusive property of Inventory Source, Inc. and/or its licensors, third party integrated entities and is protected by copyrights or other intellectual and proprietary rights. All software used on any UI is the property of Inventory Source, Inc. and/or its of software third party partners and is protected by copyrights, patents or other intellectual and proprietary rights.

4.2 Subject to the terms and conditions of this Agreement, Inventory Source, Inc. grants a limited royalty free license to you to make personal use of the Software and the Services only for their intended purposes. This license expressly excludes any resale of the Software and the Services, making any derivative of the Software or the Services, the collection and use of other users’ email addresses or other materials (for example, advertisements), or any data extraction or data mining whatsoever, except with the express consent of the owner of such materials.

4.3 Inventory Source, Inc. retains all right, title, and interest in and to its trademarks, service marks and trade names worldwide (collectively, the “Marks”). You shall only use Inventory Source, Inc.’s Marks with the express written permission of Inventory Source, Inc. and then only in the manner authorized. Under no circumstances may you alter, modify, or change Inventory Source, Inc.’s Marks.

5. Suspension and Termination.

If you breach any of the material terms of this Agreement or if you take any actions that, in our reasonable judgment, may cause legal liability for, or claims against you, our users, or us, prior to providing CUSTOMER a Suspension or Termination Notice (as defined below), Inventory Source, Inc. will provide CUSTOMER with a written notice warning CUSTOMER that its access to the Software and Services is in jeopardy of suspension or termination (the “Suspension or Termination Warning Notice”) setting forth the reason(s) for the warning and proposed steps CUSTOMER may take to cure the event(s) giving rise to the Suspension or Termination Warning Notice, and CUSTOMER shall have thirty (30) business days (or such other time period as mutually agreed between the Parties) from the date of receiving the Suspension or Termination Warning Notice (the “Warning Cure Period”) to take steps to cure such event(s) to the reasonable satisfaction of Inventory Source, Inc.  If CUSTOMER fails to cure such event(s) to the reasonable satisfaction of Inventory Source, Inc. during the Warning Cure Period, Inventory Source, Inc. may issue a written notice to CUSTOMER indicating that CUSTOMER’s access to the Software and Services is being either suspended or terminated and the reasons therefore, and the effective date of any such suspension or termination (the “Suspension or Termination Notice”); provided, however, that the effective date of any suspension or termination shall be no less than thirty (30) business days from the date the Suspension or Termination Notice is received by CUSTOMER.   In the event Inventory Source, Inc. suspends or terminates your access to the Software or Services, you acknowledge that you may be denied any further access to the Software or Services.

6. Warranty Disclaimer.

THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INVENTORY SOURCE, INC. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. INVENTORY SOURCE, INC. SPECIFICALLY DISCLAIMS ALL WARRANTIES INCLUDING WITHOUT LIMITATION:

(A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;

(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND

(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF INVENTORY SOURCE, INC.

Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not fully apply to you. You may also have other legal rights which vary from state to state.

7. General Release.

7.1 BECAUSE INVENTORY SOURCE, INC. IS NOT INVOLVED IN DEALINGS BETWEEN OUR USERS OR BETWEEN OUR USERS AND MARKETPLACE/WAREHOUSE USERS, IF A DISPUTE ARISES BETWEEN YOU AND ANOTHER PARTY, YOU RELEASE INVENTORY SOURCE, INC. (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. 

7.2 YOU ACKNOWLEDGE AND AGREE THAT INVENTORY SOURCE, INC. IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUPPLIERS OR YOUR SALES CHANNEL AS DEFINED BY A URL OR MARKETPLACE ADDED IN YOUR INVENTORY SOURCE, INC. ORDER MANAGEMENT UTILITY, AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY SERVICES, CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH SUPPLIERS OR YOUR SALES CHANNELS. YOU AGREE THAT INVENTORY SOURCE, INC. SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH SERVICES, CONTENT, ADVERTISING, PRODUCTS OR OTHER MATERIALS.

7.3 YOU ACKNOWLEDGE AND AGREE THAT INVENTORY SOURCE, INC. DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR INFORMATION PROVIDED BY OTHER USERS WHICH IS MADE AVAILABLE ON THE SOFTWARE. YOU MAY FIND OTHER USER’S INFORMATION TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. YOU AGREE THAT INVENTORY SOURCE, INC. SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH INFORMATION.

8. Limitation of Liability.

UNDER NO CIRCUMSTANCES WILL INVENTORY SOURCE, INC. OR CUSTOMER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, CONTENT, FILES, PROFIT OR GOODWILL, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,  THE SERVICES, THE INABILITY TO USE THE SERVICES OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.

ALL SOLUTIONS AND RECOMMENDATIONS FROM THE SUPPORT STAFF SHOULD BE TESTED AND VALIDATED BY YOU, THE CUSTOMER, OR ANOTHER MEMBER FROM YOUR COMPANY. OUR SOLUTIONS AND RECOMMENDATIONS ARE MADE BASED ON THE DETAILS AVAILABLE TO US IN YOUR EMAIL AND ENSURING THESE ARE A GOOD FIT FOR YOUR ACCOUNTS CONFIGURATION IS YOUR RESPONSIBILITY. FLXPOINT AND THE FLXPOINT SUPPORT TEAM WILL NOT BE HELD LIABLE FOR ANY LOSSES ON A CUSTOMER’S SELECTED CHANNEL(S) BASED ON PROPOSED SOLUTIONS OR SETTINGS RECOMMENDATIONS.“

9. Indemnity.

9.1  Inventory Source, Inc.  hereby agrees to, at its own expense, indemnify, defend and hold CUSTOMER and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (i) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content on the Software or the Services; (ii) any fraud  or breach of this Agreement by Inventory Source, Inc.; (iii) Inventory Source’s violation of any law or the rights of a third party; or (iv) Inventory Source, Inc.’s provision of the Software or the Services or the access of your account by any unauthorized third party.

9.2  CUSTOMER hereby agrees to, at its own expense, indemnify, defend and hold Inventory Source, Inc. and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (i) any fraud or breach of this Agreement by CUSTOMER; (ii) any third-party claim, action or allegation brought against Inventory Source, Inc.. arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; or (iii) CUSTOMER’s violation of any law or the rights of a third party.

10. Notices and Contact Information.  All notices required pursuant to this Agreement and the exhibits hereto shall be made pursuant to this Section 10.

10.1 Inventory Source, Inc. shall send any notice, including warning notices, related to a potential suspension, interruption or termination of CUSTOMER’s access to the Software or the Services to the email address provided in your registration information.

10.2 You shall provide notice to Inventory Source, Inc. via email to support@flxpoint.com.

11. Termination.

Notwithstanding the notice provision above, CUSTOMER may terminate this Agreement 30 days prior to contract renewal by notifying Inventory Source, Inc. via email at support@flxpoint.com. During this process, CUSTOMER may be asked to contact Inventory Source, Inc. via telephone during normal business hours to complete the termination and to ensure that the termination process is completed quickly and effectively; provided however, that the termination shall be effective as of the date of the email. If you were registered for any paid services, your last bill from Inventory Source, Inc. will be for the month in which you have canceled the service. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity and the general provisions.

12. Representations and Warranties.

12.1 Each of Inventory Source, Inc. and CUSTOMER represents and warrants to the other that (i) it has the right and power to enter into this Agreement and to perform all terms hereof; (ii) it is duly organized and in good standing under the laws of its state of organization;  (iii) the entering into and performance of this Agreement will not violate any judgment, order, law, contract, regulation, or agreement applicable to such party or violate the rights of any third party, or result in any breach of, or constitute a default under, any other agreement to which it is a party; and (iv) the individual executing this Agreement, and whose signature appears below is duly authorized to execute this Agreement.

12.2 Inventory Source, Inc. represents, warrants and covenants to CUSTOMER that (i) the intellectual property used by Inventory Source, Inc. to provide the Software and the Services does not infringe upon the intellectual property of a third party; (ii) it will provide a secure environment (including appropriate technical, physical and organizational security measures and safeguards) for CUSTOMER data in order to protect CUSTOMER data from unauthorized access or use; and (iii) Inventory Source, Inc. shall provide the Software and perform the Services in a professional manner which reflects the technical knowledge required to provide the Software and perform the Services at standards and functionality that meet or exceed industry standards

13. Confidentiality.    

13.1  Each Party will protect and keep confidential the Confidential Information of the other Party from misappropriation and unauthorized use or disclosure, and, at a minimum, will take precautions at least as great as those taken to protect its own Confidential Information of a similar nature, but no less than a reasonable degree of care.  Without limiting the foregoing, the receiving Party will (i) use such Confidential Information solely for the purposes of the performance of this Agreement and (ii) disclose such Confidential Information only to those of its employees, consultants and agents, and others who have a need to know the same, for the purpose of performing this Agreement and who are informed of and agree to a duty of nondisclosure.  The receiving Party may also disclose Confidential Information of the disclosing Party to the extent necessary to comply with applicable law or legal process, provided that the receiving Party gives the disclosing Party reasonable advance written notice thereof.  Upon request of the other Party, or in any event upon the expiration or earlier termination of this Agreement, each Party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other Party; provided, however, that the receiving Party may retain copies of the disclosing Party’s Confidential Information for the receiving Party’s files to the extent necessary for the receiving Party to comply with legal and/or regulatory requirements.  Notwithstanding the return of Confidential Information, each Party will continue to be bound by its obligations of confidentiality under this Agreement.

13.2 “Confidential Information” means all nonpublic information relating to a Party or its Affiliates that is expressly designated on the documents or materials as “Confidential” or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential.  Confidential Information shall also include (i) all nonpublic information relating to a Party’s or its Affiliates’ technology, customers, business plans, agreements, promotional and marketing activities, finances and other business affairs; and (ii) all third-party information that a Party or its Affiliates makes known to the other Party in writing that it is obligated to keep confidential. Particular information that may be deemed as confidential will only be shared for promotional and marketing activities or other given written approval of the parties.  Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, or may be in the nature of unwritten knowledge.  Confidential Information does not include any information that (1) has become publicly available without breach of this Agreement or breach of a contractual obligation of a Party to this Agreement, (2) can be shown by documentation to have been known to the receiving Party at the time of its receipt from the disclosing Party or its Affiliates, (3) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (4) can be shown by documentation to have been independently developed by the receiving Party without reference to any Confidential Information.

14. Independent Contractors.

The Parties are entering into this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them or any of their respective employees, subcontractors, agents or representatives.  Neither Party will represent itself to be an employee or agent of the other or enter into any agreement or legally binding commitment or statement on the other’s behalf of or in the other’s name.

15. Force Majeure.  

If either Party is unable to perform any of its obligations under this Agreement due to an event beyond the control of that Party, including but not limited to natural disaster, acts of God, epidemic, pandemic, actions or decrees of governmental bodies, acts of war, terrorism, acts or omissions of third parties, failure of internet service providers or failure of public communications lines or networks, that Party will use commercially reasonable efforts to  eliminate or minimize the effect of such events upon performance of its obligations under this Agreement and to resume performance of its obligations, but will have no liability to the other Party for failure to perform its obligations under this Agreement for so long as it is unable to do so as a result of such event.

16. General.

This Agreement is not assignable, transferable or sublicensable by either Party without the prior written consent of the other Party (such consent not to be unreasonably withheld, delayed or conditioned), and any such conveyance shall be null and void. Each Party shall comply with all applicable laws and rules and regulations with respect to the performance of its obligations pursuant to this Agreement.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The failure to act with respect to a breach does not waive the right to act with respect to subsequent or similar breaches. 

17. Privacy Statement

Inventory Source Inc. (DBA Flxpoint) has created this privacy statement in order to demonstrate our firm commitment to privacy. The following discloses our information gathering and dissemination practices for the website flxpoint.com and web app app.flxpoint.com.

17.1 Gathering of System Information

When you use Flxpoint’s services we track your activity on our website. Your personal information is used to identify you in our system allowing Flxpoint to charge for your use of subscribed Flxpoint services, and to contact you about the status of our service and any changes to our service via e-mail or telephone. We also use the information gathered from tracking user activities to improve our service. We also track your Internet Protocol (IP) address, domain name (if applicable), browser type, session duration, and transaction data-which is available to any site to which you connect. Flxpoint uses this information to administer the site and to further improve our service to you.

17.2 Tracking of Cookies

A “cookie” is a small piece of data that is sent to your browser from a web server and stored on your computer’s hard drive. Cookies do not damage your computer. 

17.3 Customer Identifiable Information

Our site’s registration form requires users to give us in-depth contact information, this information is used to help us serve you better, it is never shared with third parties, except when you specifically authorize us. See section (5) below. Your contact information is also used to contact you, by our staff when necessary. Financial information that is collected is used to check the users’ qualifications for registration and to bill the user for products and services only and we do not share this information with our partners unless you explicitly authorize us to.

17.4 Foreign Systems

This site contains links to other, non Flxpoint Partner sites. We are not responsible for the privacy practices or the content of such Web sites. Flxpoint will only transmit your information to Flxpoint partners when you have elected to sign up for a co-branded service that is linked with the Flxpoint system. For your convenience we will then transmit only the information required by the partner, through a secure channel to avoid you needing to re-enter the information. However it is your responsibility to ensure that you agree to the third parties privacy policy, and relevant licensing statements prior to authorizing us to transmit your information. For your convenience a link may be provided allowing you to review any privacy policies and licensing statements prior to data transmission.

17.5 Internal Use of Information

Our site provides a mechanism for people to send feedback and request more information. This information is not uniquely stored, but may be aggregated with other data to ensure that we properly meet users’ expectations and have the necessary resources planned to accommodate future growth. A users’ contact information is also used to get in touch with the user when necessary. Financial information that is collected is used to check our users’ qualifications and bill the user for products and services.

17.6 Copyright Policy

Copyright. Without limiting any other remedies, Flxpoint may suspend or terminate your account if you are found to be infringing upon the copyright, trademark or other rights of third parties. Copyright, or Trademark owners can report infringing items, and have such items removed. Once the identity of a copyright or trademark owner is established, the owners may have limited access to some of your personally identifiable information as described in the Flxpoint Privacy Policy.

17.7 Update Policy

This site gives users the following options for changing and modifying information previously provided. Log in to account via app.flxpoint.com and upon entering registered email and password.

17.8 Notice to Residents of the European Economic Area

In accordance with applicable laws, you may have the right to request access to, rectification, and erasure of your personal information; restriction of processing of personal information; objecting to certain processing of personal information; and the right to data portability. Where any processing of personal information is solely dependent upon your consent, you have the right to withdraw such consent at any time. For example, we suggest by using any unsubscribe link contained in an applicable marketing message, or emailing us at support@flxpoint.com

Where you believe that we have not processed your personal information in accordance with applicable laws, you may lodge a complaint with the respective supervisory authority or data protection regulator. The provision of personal information by you will be for contractual, marketing, or analytical purposes as referred to in this Privacy Policy.

To exercise your rights under these provisions, please contact us at the contact details below. When we receive your request, we may ask you to verify your identity before we can act on your request. We may withhold information where we are required by law to do so or the search for that information would require disproportionate effort or have a disproportionate effect to, for example, the cost of providing the information, the time it would take to retrieve the data, or how difficult it may be to obtain the information requested.

17.9 Contacting Flxpoint

If you have any questions about this privacy statement, the practices of this site, or your dealings with this Web site, you can contact:

Flxpoint
320 1st St N Suite 608
Jacksonville Beach, FL 32250
support@flxpoint.com