Terms of Service

1. The agreement

1.1 Who this is between. These Terms of Service (the "Terms") are an agreement between FlexVivid ("FlexVivid", "we", "us" or "our"), a custom software business based in Lakewood, New Jersey, and the person or business that engages us or uses our services ("you", "your" or the "Client"). If you accept these Terms on behalf of a business, you confirm that you have authority to bind that business, and "you" means the business.

1.2 How you accept them. You accept these Terms by signing or approving a Proposal that refers to them, by clicking to accept them in the client portal, by paying an invoice from us, or by using the Services. If you do not agree, do not use the Services.

1.3 Order of precedence. A Proposal sets out the scope, price and schedule of a particular piece of work. These Terms govern everything else. If a Proposal and these Terms conflict, these Terms control, unless the Proposal states that it overrides a specific numbered section of these Terms, in which case the Proposal controls for that section and that work only.

1.4 Business use only. The Services are offered to businesses and organizations for business purposes, not to consumers for personal, family or household use.

2. Definitions

Services

Everything we provide to you: discovery, design, software development, fixes, hosting and operation, support, and any other work described in a Proposal or requested through the client portal.

Proposal

A written quote, statement of work, scope or change request that we issue and you approve, by signature, in the client portal, or in writing by email.

Deliverables

The software, code, configuration, documents and other materials we create for you under a Proposal.

Client Data

The data you or your users put into, or generate through, the software we build or operate for you.

Third-Party Services

Products and services supplied by companies other than FlexVivid, including hosting, domains, databases, email delivery, text messaging, payment processing, AI models, code hosting and software libraries.

Fees

All amounts payable to FlexVivid, including build-phase prices, monthly fees and charges for Third-Party Services.

3. Services and proposals

3.1 Phases. Build work is divided into phases. Each phase is scoped, priced and approved in a Proposal before work on it starts.

3.2 Changes in scope. Work that is outside the approved scope of a phase is a change. We will tell you when a request is a change before doing it. A change is priced as its own piece of work, or folded into a later phase, and is done only once you approve it.

3.3 Estimates. Dates in a Proposal are good-faith estimates, not guarantees. Delays caused by late feedback, missing information or access, changes in scope, or Third-Party Services extend the schedule accordingly.

3.4 Subcontractors. We may use employees, contractors and service providers to perform the Services. We remain responsible for their work under these Terms.

3.5 Declining work. We may decline any request or Proposal, and we may decline to build anything we believe is unlawful, unsafe or misleading.

4. Fees and payment

4.1 Fixed price per phase. Each build phase is charged at the fixed price stated in its Proposal, invoiced on the schedule stated in that Proposal. If no schedule is stated, we may invoice a deposit before work starts and the balance on delivery.

4.2 Monthly fees. Monthly operation and support is invoiced monthly in advance at the amount agreed in writing. We may change a monthly fee on 30 days' written notice.

4.3 When invoices are due. Invoices are due on receipt unless the invoice or the Proposal states another due date.

4.4 Late payment. If an invoice is not paid when due, we may pause work, including work on other phases and new requests, until it is paid, and the schedule is extended by the length of the pause. If an invoice is more than 30 days overdue, we may also suspend Third-Party Services we provide to you after giving you at least 10 days' written notice. You agree to pay reasonable costs of collecting overdue amounts.

4.5 Taxes. Fees do not include sales, use or similar taxes. You are responsible for any such taxes that apply, other than taxes on our income.

4.6 Billing questions. If you believe an invoice is wrong, tell us in writing within 15 days of receiving it and pay the part that is not in question. Fees for work already performed are not refundable unless a Proposal says otherwise.

5. Monthly operation and support

5.1 What it covers. Unless a Proposal says otherwise, the monthly plan covers keeping the system running and monitored, looking after its hosting, support for you and your staff, fixing defects, routine small improvements, and updates and security patches to the components it depends on.

5.2 What it does not cover. New modules, new integrations, rebuilding part of the system, and work for a new location or business are separate build phases, priced in their own Proposal.

5.3 Response, not a guarantee. We usually answer reports and inquiries within one business day. These are targets, not service levels, and no credit or refund is owed if one is missed. We do not guarantee that the software or any Third-Party Service will be available at any particular time.

6. Third-party services and hosting

6.1 We may arrange them for you. The software we build depends on Third-Party Services. We may choose, arrange, configure and pay for Third-Party Services on your behalf, including hosting, domains, databases, email delivery, text messaging and AI services.

6.2 Our prices, not pass-through cost. When we provide a Third-Party Service to you, we may charge for it at our own price, which may include a markup over what we pay. Those charges are our prices for providing, managing and supporting the service, not a pass-through of the provider's cost, and we are not required to disclose what the provider charges us. We may change those prices on 30 days' written notice, or sooner if the provider raises its price to us.

6.3 Their terms apply. Each Third-Party Service is subject to its provider's own terms and policies, and you agree to comply with them. Where an account is in your name, you are responsible for keeping it in good standing.

6.4 Not our responsibility. FlexVivid does not control Third-Party Services and is not responsible for their outages, errors, data loss, security incidents, changes to features, discontinuation, or changes in price. We will work around a third-party problem where we reasonably can and keep you informed.

6.5 Open-source components. Deliverables include open-source software, which is licensed to you under its own license terms. Those terms prevail over these Terms for those components.

7. AI-assisted work

7.1 We use AI tools. We use artificial intelligence tools to help analyze reports, read code, draft changes and prepare proposed fixes. AI output can be wrong, incomplete or inconsistent.

7.2 Your review still matters. However a change was produced, nothing we do replaces your own review and testing. Section 8 applies to every change.

7.3 Your data and AI providers. To analyze a report we may send the report and the relevant parts of your code to an AI provider under that provider's business terms, as described in our Privacy Notice. We do not use Client Data to train models of our own.

8. Review, testing and approval

8.1 You test before you rely on it. You are responsible for reviewing and testing all software, fixes and changes we deliver before you rely on them in your business. That includes checking that the results are correct for your data, your customers and your way of working.

8.2 Above all, before it touches money. Before you use any software, fix or change to bill or charge anyone, take or send a payment, move money, calculate or file taxes, pay staff, or keep financial or legal records, you must test it with your own data and confirm the results are correct. Keep checking those results in normal use. Money handled by software you have not tested is handled at your own risk.

8.3 Your approval is your decision. When you accept, approve or ask us to deploy a fix or change, including by pressing Accept in the client portal, you are deciding to put it into use, and you accept the result. Anything you put into use without testing is used at your own risk.

8.4 Backups and records. You are responsible for keeping your own backups and independent records of data that matters to your business, including financial records, and for checking the results the software produces. Any backups we keep are a convenience, not a guarantee that data can be recovered.

8.5 Tell us promptly. If you find a defect, report it promptly through the client portal. We will fix defects in our work as part of the Services. That is your remedy for defects, subject to Sections 12 and 13.

9. Your responsibilities

9.1 Information and access. You will give us accurate information, timely decisions and feedback, and the access we reasonably need to do the work. A delay on your side delays the work.

9.2 Your accounts. You are responsible for every action taken under your portal logins and your users' logins. Keep sign-in details secure and tell us at once if you suspect misuse.

9.3 Your data. You are responsible for Client Data and for having every right, notice and consent needed for us to process it, including personal information about your customers and staff. We process Client Data only to provide the Services and on your instructions.

9.4 Lawful use. You will use the Services and Deliverables lawfully, including laws on privacy, consumer protection, email and text messaging, and record keeping. You are responsible for the messages, invoices and other communications your software sends on your behalf.

10. Ownership and license

10.1 Your code and data. Once you have paid in full for a phase, you own the custom code we wrote specifically for you in that phase. You own Client Data at all times. On request, we will give you an export of Client Data in a commonly readable format.

10.2 Our tools. We keep all rights in our pre-existing and independently developed tools, libraries, templates, components, frameworks and methods, in improvements to them, and in our general knowledge, skills and experience ("FlexVivid Materials"). We may use them for other clients.

10.3 Your license to our tools. Where FlexVivid Materials are part of a Deliverable, we grant you, once you have paid for that Deliverable, a perpetual, non-exclusive, royalty-free license to use, copy and modify them as part of that Deliverable for your own business. You may let another developer work on your system under this license. You may not sell or license FlexVivid Materials on their own.

10.4 Before payment. Until a phase is paid for, Deliverables from that phase are licensed to you for evaluation only, and we may suspend that license if payment is overdue.

10.5 Feedback and references. We may use suggestions you give us about our services without obligation. We will not name you as a client or publish your information without your written permission.

11. Confidentiality

11.1 What is confidential. Each party will keep the other's non-public business, technical and financial information confidential, use it only to perform or receive the Services, and protect it with at least reasonable care.

11.2 Exceptions. This does not apply to information that is or becomes public through no fault of the receiving party, was already known to it, is received from someone else without a duty of confidence, or is independently developed. A party may disclose information when required by law, after giving notice where the law allows.

11.3 Service providers. We may share your confidential information with our subcontractors and Third-Party Service providers only as needed to provide the Services, under obligations of confidence.

12. Disclaimer of warranties

13. Limitation of liability

13.4 Time limit. Any claim against FlexVivid must be brought within one year after the event giving rise to it, to the extent the law allows that limit.

14. Indemnification

You will defend, indemnify and hold harmless FlexVivid and its owner, staff and contractors from and against all claims, losses, damages, fines, penalties, costs and expenses (including reasonable attorneys' fees) arising out of or relating to: (a) Client Data, or materials and instructions you provide; (b) your use of the Services or Deliverables, including charges, payments, invoices, messages and records produced by your software; (c) your violation of these Terms, of law, or of a Third-Party Service's terms; or (d) any claim by your customers, staff or users. We will notify you of a claim, let you control its defense, and cooperate at your expense, and you will not settle a claim that admits fault on our part without our written consent.

15. Term and termination

15.1 Term. These Terms apply from when you accept them until all Services have ended and all Fees are paid.

15.2 Ending the monthly plan. Either party may end the monthly plan on 30 days' written notice.

15.3 Ending a phase. Either party may end a phase in progress on written notice. You will pay for work performed up to the end date, and for Third-Party Services committed on your behalf that cannot be canceled.

15.4 Ending for cause. Either party may end these Terms on written notice if the other materially breaches them and does not cure the breach within 15 days of written notice, or at once if the other becomes insolvent. We may suspend the Services at once if your use threatens the security or lawful operation of a system, or exposes us to legal liability.

15.5 Handover. When the Services end, and once all Fees are paid, we will provide an export of Client Data and the code you own, and help transfer accounts in your name. Handover work beyond that export is charged at our then-current rates. We may delete Client Data we hold 60 days after the Services end.

15.6 Survival. Sections 4, 6.4, 8, 10, 11, 12, 13, 14, 16 and 18, and any other terms that by their nature should continue, survive the end of these Terms.

16. Governing law and disputes

16.1 Law. These Terms are governed by the laws of the State of New Jersey, without regard to its conflict-of-laws rules.

16.2 Venue. Any dispute arising out of or relating to these Terms or the Services will be brought exclusively in the state courts located in Ocean County, New Jersey, or the United States District Court for the District of New Jersey, and each party consents to the jurisdiction of those courts.

16.3 Talk first. Before starting any proceeding, the parties will try in good faith for 30 days to resolve the dispute by discussion. Either party may still seek urgent relief to protect its confidential information or intellectual property.

16.4 Jury waiver. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS.

17. Changes to these terms

We may update these Terms. The current version is always posted at this address with its effective date and version number. Continuing to use the Services after an update takes effect means you accept the updated Terms. For a material change, we may also ask you to accept the new version in the client portal before you continue to use it. An update does not change the price or scope of a Proposal you have already approved.

18. General terms

18.1 Entire agreement. These Terms and the Proposals you approve are the entire agreement between us about the Services and replace all earlier discussions and understandings. Terms in your purchase orders or forms do not apply.

18.2 Severability. If any part of these Terms is found unenforceable, it will be enforced to the maximum extent permitted, and the rest of these Terms stays in effect.

18.3 No waiver. Not enforcing a provision is not a waiver of the right to enforce it later.

18.4 Assignment. You may not assign these Terms without our written consent. We may assign them to a successor to our business.

18.5 Events beyond control. Neither party is liable for a delay or failure caused by events beyond its reasonable control, including outages of Third-Party Services, internet or power failures, natural disasters and acts of government. This does not excuse payment.

18.6 Relationship. We are an independent contractor. Nothing in these Terms creates a partnership, joint venture, employment or agency relationship.

18.7 Electronic acceptance. Acceptance by clicking, by email or in the client portal is as binding as a signature.

18.8 Headings. Headings and the short version at the top of this page are for convenience only and do not affect the meaning of these Terms.

19. Using this website

19.1 No offer. Information on this website, including price guidance, is general information and not a binding offer. Sending an inquiry does not create a client relationship.

19.2 The demo. The live demo uses an invented company. Every name, order, invoice and figure in it is fictional.

19.3 Acceptable use. Do not attack, overload or scrape this website, or try to reach any part of it that requires signing in without permission. The content of this website belongs to FlexVivid.

19.4 Privacy and texting. Our Privacy Notice explains how we handle personal information, and our SMS Terms govern text messages from us.

20. Contact and notices

Notices under these Terms must be in writing. We send notices to the email address on your account or in your Proposal. Send notices to us at hello@flexvivid.com. A notice by email is received when sent, unless the sender receives a delivery failure.