Effective January 1, 2021

Welcome to Flex!

Because transparency is important to us, we want you to have all the information about your Flex experience available to you at any time. Whether you’re the kind of person who likes to skim the highlights, dig into details, or pore over a good legal document, we’ve got everything about how to use the Flex services right here, right at your fingertips. Enjoy! These terms and conditions, along with any documents incorporated by reference (collectively, “Terms of Use”) govern your use of and access to the Services, including:

• the Flex website and any account and servicing portal (“Website”)

1. Acceptance of Terms of Use.

   You should read these Terms of Use carefully and print them for future reference. By clicking the button to proceed, or by accessing or using the website, Services or downloading the App or any content from or through the Services, you are agreeing to these Terms of Use. The Terms of Use along with our Privacy Policy explain how we provide the Services, collect, hold, and process your information, and govern your access to and use of the Services, including any content, functionality and services offered on or through the App. If you do not want to agree to these Terms of Use or the Privacy Policy, you may not use the Services.

2. Modification.

   We may revise and update these Terms of Use from time to time. We will provide notice of the updated Terms of Use by posting a notice and the revised terms on the App and/or Website. We want to make the App as useful and efficient as possible. We reserve the right to change, amend, or update the contents, operation, or any other features of the App or any or all of Services at any time in our sole discretion and without notice, except as required by law. Note you may need to update to the latest operating system of your mobile device or install the updates to the App to continue using the App. We will not be liable if for any reason all or any part of the App or Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services or the App to users, including registered users. You are responsible for making all arrangements necessary on your end to have access to the Services and ensuring that all persons who access the Services through your internet connection are aware of and comply with these Terms of Use.

3. Accessing and Using the App/Services.

   You agree that your access and usage of the App will comply with all applicable federal, state, and local laws, including the California Consumer Privacy Act of 2018, and any industry guidance that may be applicable.

   1. When you download our App, you may do so through a third party’s app store to your mobile device solely for your own personal, non-commercial use. Subject to your acceptance of these Terms of Use and other agreements between you and us, we hereby grant to you a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the App only in the United States, and certain third party or other platforms accessible through the Services. We are offering the App to use for your own personal use, but you should be aware that you cannot send it on to anyone else, and you’re not allowed to copy or modify any part of the App or our trademarks in any way. You are also not allowed to use any robot, spider, crawl, scraper or other automated means to use or access the App. You agree to only use the App on a device or product that runs the operating system for which the App was intended and in compliance with the applicable app store’s terms of service or its equivalents. You acknowledge that these Terms of Use are between you and us and not the applicable app store. We may stop providing the Services or the App, and may terminate use of it at any time without giving notice of termination to you. Upon termination, the rights and licenses granted to you in these terms will end.
   2. To use the App, you must provide your own access to an active internet connection via a wireless network and pay any cellular or data service, communication, use, access and connection fees as may be applicable with such network access. The connection can be Wi-Fi or provided by your mobile network provider, but we cannot take responsibility for the full functionality of the App if you don’t have access to the internet. If you’re using the app outside of Wi-Fi, the terms of agreement with your mobile network provider will still apply. Data and/or roaming charges may apply.
   3. To access the Services, you may be asked to provide certain registration details or other information and create a user account, with a username and password. We may set standards for your username and password. It is a condition of your use of the Services that all the information you provide is correct, current and complete, and you agree to maintain and update your user account information, if any, as soon as possible as it changes. The App stores and processes personal data that you have provided to us so that you can conduct business with us. We may require security and authentication procedures for access and additional authentication controls for certain transactions. It is your responsibility to keep your phone and access to the App secure, including protecting your username and password, if any. If a password is created, we recommend that you change it regularly, and select a unique username and password combination for use only with the Services. You must notify us immediately if you suspect fraudulent activity on your account, the App, or the Services.
   4. We display vehicle inventory information provided by licensed motor vehicle dealers with whom we have agreements (“Flex Dealers”), so that you can browse through the available vehicles of multiple dealers. Our App allows you to shop from eligible vehicles based on a prequalification. Once you have selected a vehicle, we will make a final determination on approval for our program. Please note any preowned vehicle is subject to prior sale. For the avoidance of doubt, we are not a vehicle broker or agent for vehicle sellers or dealers. Until you sign a final contract with us, you are not required to accept any vehicle and you may select another vehicle or a traditional form of financing. You always have the right to lease, purchase, or otherwise obtain a similar vehicle from a traditional financing source at a different price.
   5. Through the App and as part of the Services, we utilize third party vendors in order for us to pre-qualify you and to show you what vehicle payment options are available to you from us based on the information you provided. You acknowledge and agree that pre-qualification is not a credit application, and does not affect your credit score. You understand prequalification is an estimate based upon preliminary information and is not a guarantee of final pricing. We make a final decision once you select a vehicle, we verify your information, and you consent to a full credit check, subject to market conditions.
   6. Once you select a vehicle and are ready to proceed, the information provided by you through the App along with your electronic consent will be considered your application. We will rely in part on this information to evaluate your eligibility for the Flex program. You understand that we may keep your application and any other information provided by you in the processing of your request for any required retention period, whether or not you are approved.
   7. Products and services may not be available in all states.

4. Electronic Communications.

   1. By using the Services, you acknowledge and agree that you are contracting with us electronically, and that we may provide you with any and all notices and disclosures in electronic format (e.g. via email or via the App or Website). Any notice, disclosure, agreement, acknowledgement, form, consent, statement, policy, record, document, preference, privacy policy, or other information we provide to you, or that you submit, agree to, or sign at our request (each, a “Communication”) will be provided in electronic form and will be provided either: (1) via the App on your mobile device, (2) via e-mail or text message, or (3) via a website. You have the option to view, save, or print PDF versions of your account documents from the App via desktop, tablet or mobile device. You may download and store such Communications and agree that we may make retention copies of Communications available via the App.
   2. You expressly consent and agree that we can contact you using written, electronic, or verbal means, including by manual dialing, emails, in-app messaging, leaving prerecorded/artificial voice messages or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-email registry. You agree that we may use any email address or telephone number you provide as set forth here, now or in the future, including mobile phone numbers. You also agree that we may monitor and record calls regarding your account to ensure the quality of our service or for other reasons. Message and data rates may apply. You may withdraw your consent from account related texts by replying HELP then STOP at any time to any account related text received from us. By entering a mobile phone number, you certify that this is your number or that you have the authority to provide this number for contact. The account texts we send may be seen by anyone with access to your phone, and you should safeguard the confidentiality of your devices.

5. Ownership.

   1. Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. The App, the Services, and their contents, features and functionality and all intellectual property located on the App or in the materials published or otherwise made available through the Services (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by us or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. These Terms of Use permit you to use the App and the Services for your personal, non-commercial use only. Except for the Communications as specified in these Terms of Use, you may not reproduce, reverse engineer, attempt to extract the source code, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the App. You also may not use any robot, spider, crawl, scraper or other automated means when using or accessing the App.
   2. These terms do not grant you the right to use any branding or logos used in our Services. You should not remove, obscure, or alter any legal notices displayed in the App or along with our Services.

6. Prohibited Uses.

   1. You may use the App or the Services only in accordance with these Terms of Use. You agree not to use the App or the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” or “spam” or any other similar solicitation; to impersonate or attempt to impersonate us, one of our employees, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing); and to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the App and the Services, or which, as determined by us, may harm Flex or users of the App or the Services or expose them to liability.
   2. You must not modify copies of any materials from the App or related to the Services; use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text; and delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the App or related to the Services. If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the App or Services in breach of these Terms of Use, your right to use the App will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the App or Services is transferred to you, and all rights not expressly granted are reserved by us.
   3. Additionally, you agree not to use the App or the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the App or the Services, including their ability to engage in real time activities through the App or the Services; use any robot, spider or other automatic device, process or means to access the App or the Services for any purpose, including monitoring or copying any of the material on the App or the Services; use any manual process to monitor or copy any of the material on the App or the Services or for any other unauthorized purpose without our prior written consent; use any device, software or routine that interferes with the proper working of the App or the Services; introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful; attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the App or the Services, the server on which the App or the Services are stored, or any server, computer or database connected to the App or the Services; and otherwise attempt to interfere with the proper working of the App or the Services. Should you use this App to commit a criminal offense, we may disclose information about the user, including the user’s identity and other personal information, to law enforcement authorities and immediately suspend or terminate the user’s right to use the App.
   4. You will not and will not permit any third party to: (i) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services in any manner or form unless expressly allowed; (ii) access or use the Services to circumvent or exceed account limitations or requirements; (iii) use the Services for the purpose of building a similar or competitive product or service, (iv) obtain unauthorized access to the Services (including without limitation permitting access to or use of the Services via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized users); (v) use the Services in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (vi) publish, post, upload or otherwise transmit data that contains 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; or (vii) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Services.

7. Privacy.

   We are committed to protecting your privacy. Any information (including personally identifiable information and bank account information) you submit to us when using the Services is governed by our Privacy Policy. The Privacy Policy encompasses any and all information you may provide to us either for purposes of creating an account, submitting an order or inquiry or to receive further information, updates and promotions about or related to the Services

8. Third Party Service Providers.

   We do not warrant, endorse, guarantee, or assume any responsibility or liability for any product or service advertised or offered by a third party through the Services, App, or Website. If you use any product or service offered by a third party in conjunction with the Services, App, or Website, you acknowledge and agree that (i) you are responsible for understanding the terms and conditions of your use of the third party product or service; (ii) we do not control the third party or its product or service; (iii) your use of their product or service is at your own risk; and (iv) we are not responsible and may not be held liable for the product or service, or the actions or omissions, of the third party. Subject to these disclaimers, we may use certain third party service providers to gather data and authenticate information regarding you, your device, and your accounts. In some instances, this may require you to accept third-party software tools and products through the Services. You further agree we may place cookies and other identifiers on the mobile devices you use to access the Services, as specified in these Terms of Use or in the Services.

   1. We use Plaid Technologies, Inc. (“Plaid”) to authenticate and gather your data from your banks or financial institutions. Plaid enables our App to connect with your bank accounts. By using our Services, you authorize us and Plaid to act on your behalf to access and transmit your personal and financial information from your banks or financial institutions. You agree to your personal and financial information being transferred, stored, and processed by Plaid in accordance with Plaid’s privacy policy found at https://plaid.com/legal.
   2. To enable and enhance secure access to the App or Services, you agree that we may access detailed information about the mobile devices or computers you use to access the App or Services and provide such data to third party service providers, and you consent to use of third party software as needed for the foregoing and to fulfill transactions as requested by you. This could include telephone numbers, cookies, flash tokens, or other unique internal and network identifiers for your mobile devices or computers. We also use cookies and other technology for information security and other legitimate business purposes. You further authorize your wireless operator (AT&T, Sprint, T-Mobile, US Cellular, Verizon, or any other branded wireless operator) or other third parties to use your mobile number, name, address, email, network status, customer type, customer role, billing type, mobile device identifiers (IMSI and IMEI) and other subscriber status details, if available, to allow verification of your identity and to compare information you have provided to us with your wireless operator account profile information for the duration of the business relationship.

9. Eligibility.

   The App and the Services are offered and available to users who are 18 years of age or older. Further eligibility requirements must be met to obtain a vehicle. By using this App or accessing the Services, you represent and warrant that you are of legal age to form a binding contract with us and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the App or the Services. You further represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (bi) you are not listed on any U.S. Government list of prohibited or restricted parties.

10. Updating Your Information.

    You agree to update your contact information with us, including your email address, through the account settings in the App. We may require that you update your App and/or Website account password and/or username from time to time.

11. Term.

    These Terms of Use will be in effect from the date you agree and at all times while you’re accessing or using the App or Services. Either you or we can terminate these Terms of Use at any time and without notice, though certain terms and obligations (as described in certain sections, such as Section 14) may survive the termination of the Terms of Use.

12. Communications in Languages Other than English.

    Please note, we may be unable to fulfill Services in a language other than English. Our communications to you may be in English only. If you are not fluent in English, please consider obtaining the services of an interpreter or taking other steps to ensure you understand the transaction before entering into it and to explain any future communications in English.

13. Governing Law.

    Except for the Arbitration Agreement in Section 14, all matters relating to these Terms of Use shall be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).

14. Dispute Resolution: Arbitration Agreement and Class Action Waiver

    This section constitutes the arbitration agreement between you and us (“Arbitration Agreement”) and includes a jury trial waiver and a class action waiver. This means that if a dispute is arbitrated, you are giving up your right to go to court to assert or defend your rights under these Terms of Use. You are also giving up your right to bring or participate in a class action in court or in class-wide arbitration. This section governs disputes arising from or related to these Terms of Use, your use of the Services, your access to and use of the App and any transactions or relationships resulting from any of the foregoing (the “Covered Disputes”). A dispute is generally any unresolved disagreement between or among you and us, and all such matters will be decided by arbitration. The term Covered Disputes shall be broadly interpreted and includes initial claims, counterclaims, cross- claims and third-party claims, and disputes based upon contract, negligence, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity. However, any dispute concerning the validity or enforceability of this Arbitration Agreement or the arbitrability of any claim or dispute is not a Covered Dispute and shall be for the court, not an arbitrator, to decide; whereas, any dispute concerning these Terms of Use as a whole is for the arbitrator, not a court, to decide. For purposes of this Arbitration Agreement, the terms “we,” “us” and “our” also include our officers, directors, employees, agents, affiliates, successors, and assigns.

    1. Dispute Resolution Without Courts, Judges, or Juries. You and we agree that upon demand by either you or us, regardless of when they arose, any Covered Disputes between you and us will be resolved by the arbitration process outlined in this section. This means:

       • You and we are choosing arbitration rather than litigation to resolve disputes.
       • You and we are each waiving the right to a jury trial or a trial before a judge in a public court (except for small claims court).

    2. Binding Arbitration. Binding arbitration lets a neutral and independent third party (the “arbitrator”) resolve a Covered Dispute instead of the court system, judges or juries.

       In the arbitration of a Covered Dispute, that neither you nor we will be entitled to:

       • join or combine Covered Disputes with those of others in any arbitration; or
       • serve as a representative or member of a class in any arbitration

       Moreover, the information that can be obtained in discovery from each other or from third persons in arbitration is generally more limited than in a lawsuit. Other rights that the parties might have in court may not be available in arbitration.

    3. Arbitration Procedures. Each arbitration, at the claimant’s election, will be administered by and under the rules of the American Arbitration Association (“AAA”), https://www.adr.org. If AAA is unable to serve and the parties cannot agree on a substitute, a court with jurisdiction shall select the arbitrator. A single arbitrator shall be appointed in accordance of the administrator’s rules. The arbitrator must be a member of the state bar where the arbitration is held with more than 10 years of experience or a retired judge and must have expertise in the substantive laws applicable to the subject matter of the Covered Dispute. The arbitrator shall apply applicable substantive law in deciding the dispute. The arbitrator may award any relief available in court on an individual claim consistent with the constitutional standards applicable in judicial proceedings. At the request of any party, the arbitrator shall write a brief explanation of the basis of his or her award. If you demand arbitration first, you will pay the claimant’s initial arbitration filing fees or case management fees required by the applicable rules up to $250, and we will pay or reimburse you for any additional initial filing fee or case management fee. We will pay the entirety of the filing fees and/or case management fees if we demand arbitration first. We shall pay the arbitration costs and fees for the first day of arbitration, up to a maximum of eight hours. The arbitrator shall decide who shall pay any additional costs and fees. You may ask the applicable arbitration administrator to reduce or waive your fees, or ask us to voluntarily pay an additional share of said fees, based upon your financial circumstances or the nature of your claim. We will always pay any costs and fees required by applicable law or that are necessary to enforce this Arbitration Agreement. Regardless of who elected arbitration or how arbitration was elected, the party asserting the claim or dispute (i.e., the party seeking money damages or other relief) is responsible for starting the arbitration proceeding. Thus, if you assert a claim against us in court, and we elect to arbitrate that claim by filing a motion to compel arbitration which is granted by the court, you will be responsible for starting the arbitration proceeding. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in that or any related or unrelated lawsuit (including a claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Agreement. You and we each acknowledge and agree that in this relationship:

       • You and we are participating in transactions involving interstate commerce.
       • Any and all claims, controversies, or disputes arising out of or related in any way to these Terms of Use, your use of the Services, your access to and use of the App and any transactions or relationships resulting from any of the foregoing shall be subject to binding arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., at the election of you or us.
       • THE ARBITRATOR SHALL NOT HAVE AUTHORITY TO CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU OR US TO SERVE AS A REPRESENTATIVE OR MEMBER OF A CLASS, AS A PRIVATE ATTORNEY GENERAL OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.
    4. Small Claims Not Affected. Notwithstanding anything to the contrary in this section, this Arbitration Agreement does not affect your or our right to pursue disputes in small claims court (or your state’s equivalent court) in the state where you reside if the court has jurisdiction over the dispute and the dispute remains in that court. However, if the dispute is transferred, removed or appealed to a different court, it shall be subject to arbitration.
    5. Opt-out Right. You have the right to opt out of the provisions of this Arbitration Agreement by sending to us in writing your name and address, Flex account number (if any), and notice of your decision to opt out to: legal@drivewithflex.com or to the following address within 30 days of entering into these Terms of Use. If you send this notice, then this Arbitration Agreement will not apply to either party but the remaining parts of these Terms of Use will continue to apply. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
    6. Appeal. The arbitrator’s award will be final and binding, except for any right of appeal provided by the FAA. However, if the amount of the dispute is more than $25,000, any party will have 30 days to appeal the award by notifying the arbitration administrator and all parties in writing. The administrator will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to. Judgment upon any award may be entered in any court with jurisdiction. An arbitration award and any judgment confirming it cannot be used in any case or arbitration except to enforce the award.
    7. Severability. If any provision of this Arbitration Agreement is found to be illegal or unenforceable, that provision will be severed from this Arbitration Agreement and the remainder of the Arbitration Agreement will be given full force and effect, except that: (i) if any provision dealing with class action, class arbitration, or consolidation is found to be illegal or unenforceable and all appeals from that ruling have been exhausted, then this entire Arbitration Agreement (except for this sentence) will be severed and the remaining provisions of these Terms of Use shall be given full force and effect, and (ii) if a claim is brought seeking public injunctive relief and a court determines that this Arbitration Agreement is unenforceable with respect to such claim and all appeals from that ruling have been exhausted, the public injunctive relief claim will be severed and stayed in court until the completion of any individual arbitration of any claims seeking monetary relief.

    8. Miscellaneous.

       • You and we each agree to take all steps and execute all documents necessary for the implementation of arbitration proceedings. You can participate without representation or may choose to be represented by an attorney or other authorized representative, unless that choice is prohibited by applicable law.
       • Arbitration fees shall be determined by the rules or procedures of the arbitration administrator, unless limited by applicable law. The arbitrator may award reasonable expenses and attorneys’ fees to the prevailing party if allowed by statute or applicable law.
       • The arbitrator may hear and rule on appropriate dispositive motions as part of the arbitration proceeding, such as motions for judgment on the pleadings, summary judgment, or partial summary judgment.
       • All parties (the arbitrator(s), you and we) agree to make best efforts to ensure that an arbitration proceeding as described in this Arbitration Agreement is completed within 180 days of filing the Covered Dispute. You and we agree not to disclose the existence, content, or results of the arbitration, except for disclosures of information required in the ordinary course of business or permitted by applicable law or regulation. The arbitration shall take place in the federal district of your residence, at a location determined by the arbitrator.
       • All statutes of limitations and rules of privilege that apply to any Covered Dispute apply to any arbitration between you and us.
       • This Arbitration Agreement constitutes the entire agreement between you and us and supersedes all prior arrangements and other communications about dispute resolution. The provisions of this Arbitration Agreement will survive termination, amendment, or expiration of your account with us, these Terms of Use, any other relationship between you and us and any bankruptcy by you (if permitted by applicable bankruptcy law).
       • No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Agreement.
       • If there are differences between this Arbitration Agreement and the rules of any arbitration administrator or other provisions in these Terms of Use, this Arbitration Agreement will control.

15. No Agency Relationship.

    Except where provided for in a separate agreement between or among you and us, no agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by the Terms of Use. Without limiting the foregoing, except as expressly set forth herein, we are not acting and do not act as an agent for any user of the Services.

16. Third Party Links.

    If the App or Services contain links to or accepts links from other sites and resources provided by third parties, these are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any such third party resources, you do so entirely at your own risk and subject to the terms and conditions and privacy policies of use for such websites. Any concerns regarding any such service or resource or any link thereto, should be directed to the particular outside service or resource.

17. Disclaimer of Warranties.

    You understand that we cannot and do not guarantee or warrant that the App or Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our App for any reconstruction of any lost data. YOUR USE OF THE APP, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP IS AT YOUR OWN RISK. THE APP, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR ANY PERSON ASSOCIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE APP OR SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE APP, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE APP OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

18. Limitation of Liability.

    IN NO EVENT WILL WE OR OUR LICENSORS, OR OUR EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APP OR SERVICES, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

19. Indemnification.

    To fullest extent permitted by law, you agree to defend, indemnify and hold harmless us and our licensors, and our and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to, a third-party claim, action, or allegation of infringement, misuse, or misappropriation based on information, data, files, or other content or materials you submit to us, any fraud, manipulation, or other violation of these Terms of Use or the Services, your violation of any other applicable laws or rights of a third party, including but not limited to rights of privacy, publicity or other property rights, or any use of the App, its content, the Services and products other than as expressly authorized in these Terms of Use. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.

20. General.

    • The Terms of Use (together with the Privacy Policy) and the agreements entered into by you through the Services represent the parties’ sole and entire agreement relating to the use of the Services and supersedes any prior or contemporaneous, conflicting or additional, communications.
    • Each of the terms in these Terms of Use stands alone, and any term or condition that is inconsistent with the laws governing the Services or the App will be deemed to apply in a manner consistent with such laws. Except as set forth in the Arbitration Agreement in Section 14, if any provision of these Terms of Use or portion thereof is held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or severed in such manner as to render the remainder of the Terms of Use to be legal and enforceable to the maximum extent permitted under applicable laws.
    • You may not assign these Terms of Use without our prior written consent but these Terms of Use may be assigned, transferred, delegated, and sublicensed by us. Any purported assignment in violation of this section shall be void.
    • Headings are for reference only and don’t define, limit, construe, or describe the scope or extent of a section.
    • We may agree to waive a provision of these Terms of Use, but any such waiver is not effective unless it is in a writing signed by us. Any such waiver shall not be deemed to be a waiver of any future occasion. And any failure to enforce any aspect of these Terms of Use shall not be construed as a waiver, without a written waiver signed by us.
    • The words “include” and “including,” when used at the beginning of a list of one or more items, indicates that the list contains examples – the list is not exclusive or exhaustive, and the items in the list are only illustrations. They are not the only possible items that could appear in the list.
    • Any and all rights not expressly granted to you are hereby reserved by us.

21. Contact Us.

    If you have any questions about these Terms of Use, or have any other feedback, comments, requests for technical support and other communications relating to the App, we invite you to contact us at: support@drivewithflex.com. We will do our best to respond promptly and to try to resolve any issue.