TERMS AND CONDITIONS
Last updated on October 12, 2021
FLOWTRICS TERMS AND CONDITIONS OF SERVICE
Last updated on October 12, 2021
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE FLOWTRICS SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Flowtrics Services Terms and Conditions (“Terms”) govern access to and use of the Flowtrics (“Flowtrics,” “we” or “us”) websites and services (collectively, the “Site”) by site visitors (“Site Visitors”) and by individuals or entities who purchase services (“Flowtrics Services”) or create an account (“Account”) and their Authorized Users (collectively, “Customers”) or otherwise access or use the Site or Flowtrics Services. By using the Site or any Flowtrics Services, you as a Site Visitor or Customer accept these Terms (whether on behalf of yourself or a legal entity you represent). An “Authorized User” of a Customer is each an individual natural person, whether an employee, business partner, contractor, or agent of a Customer, who is registered or permitted by Customer to use the Flowtrics Services subject to these Terms and up to any maximum number of users or uses specified at the time of purchase. Customers and Site Visitors may be referred to in these Terms as “you” and “your” as applicable.
If you are a Customer and you or your organization are bound by a Master Services Agreement with Flowtrics (“Corporate Terms”), then these Terms will apply, if at all, only to use of the Site or any Flowtrics Services to the extent such use is not already governed by such Corporate Terms. For the avoidance of doubt, all references to the “Site” in these Terms also include the Flowtrics Services. As used herein “Flowtrics Services” refers to the product and services offerings of Flowtrics made available for access and use from the Site.
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SITE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS.
- UPDATES AND COMMUNICATIONS
1.1 We may revise these Terms or any additional terms and conditions that are relevant to a particular Flowtrics Service from time to time to reflect changes in the law or to the Flowtrics Services. We will post the revised terms on the Site with a “last updated” date. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE FLOWTRICS SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
1.2 You agree to receive all communications, agreements, and notices that we provide in connection with any Flowtrics Services (“Communications”), including, but not limited to, Communications related to our delivery of the Flowtrics Services and your purchase of or subscription to the Flowtrics Services, via electronic means, including by e-mail, text, in-product notifications, or by posting them on the Site or through any Flowtrics Services. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.
- ADDITIONAL TERMS FOR FLOWTRICS SERVICES
2.1 Flowtrics Signature. If you use Flowtrics Signature, you accept the Terms of the Flowtrics Signature Service Schedule below.
2.2 Early Access Program(s). If you participate in an Early Access Program(s), you accept the Terms of the Early Access Program(s) Service Schedule below.
- USAGE AND ACCESS RIGHTS
3.1 Eligibility to Use. You represent and warrant that you are: (a) of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms; and (b) you (or your Authorized Users, as applicable) are not and will not when using the Site be located in, under the control of, or a national or resident of a U.S. embargoed country or territory and are not a prohibited end user under Export Control Laws (as defined in Section 12.3). You acknowledge that you are not permitted to use the Site if you cannot make these representations. If Flowtrics has previously prohibited you from accessing the Site or using the Flowtrics Services, you are not permitted to access the Site or use the Flowtrics Services. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, also refer to that organization or entity).
3.2 Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your internal business purposes and only as expressly permitted in these Terms and any applicable paid Customer plan that enables registration of an Account for the use of a Flowtrics Service (“Subscription Plan”) when applicable. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor of Flowtrics, you may not access or use the Flowtrics Services without Flowtrics’s explicit, advance, written consent, and then only for the purposes authorized in writing. Except as otherwise restricted by these Terms, Flowtrics grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials on the Site provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for personal or internal, non-commercial use or in accordance with any applicable Subscription Plan; and (c) do not modify them in any way. Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access. Any violation by you of the license provisions contained in this Section 3 may result in the immediate termination of your right to use the Site, as well as potential liability for copyright infringement or other claims depending on the circumstances.
4.1 Intellectual Property. The Site contains materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties.
4.1.1 The Site is also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Site. You acknowledge that the Site contains original works that have been developed, compiled, prepared, revised, selected, and arranged by Flowtrics and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and which constitute valuable intellectual property of Flowtrics and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Site, shall, as between you and Flowtrics, at all times be and remain the sole and exclusive property of Flowtrics.
4.1.2 The trademarks, logos, taglines, and service marks displayed on the Site (collectively, the “Trademarks”) are registered and unregistered Trademarks of Flowtrics and others. The Trademarks may not generally be used in any advertising or publicity, or otherwise to indicate Flowtrics’s sponsorship of or affiliation with any product, service, event, or organization without Flowtrics’s prior express written permission. Flowtrics acknowledges the Trademarks of other organizations for their respective products or services mentioned on the Site. Any rights not expressly granted in these Terms or on the IP Pages are reserved by Flowtrics, Inc. Other than as provided in these Terms or in the IP Pages (https://www.Flowtrics.com/IP) incorporated herein by reference, your use of the Trademarks, or any other Flowtrics content, is strictly prohibited.
4.1.3 Copyright. Flowtrics respects copyright law and expects its users to do the same. If you believe that any content or material on the Site infringes copyrights you own, please notify us immediately.
4.2 Software Use Restrictions. Software available for downloading through the Site or third-party websites or applications (the “Software”) is the copyrighted work of Flowtrics and third-party providers. Use of the Software is governed by these Terms. Unauthorized reproduction or distribution of the Software is expressly prohibited by law, and may result in civil and criminal penalties. Violators may be prosecuted.
4.3 Non-eDocument Content and Submissions/User Content.
4.3.1 Submissions. The Site or Flowtrics Services may enable you to submit, post, upload, or otherwise make available (collectively, “Post”) content such as questions, public messages, ideas, product feedback, comments, and other content (collectively, “User Content”) that may or may not be viewable by other users. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive, royalty-free, and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit any other user to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. For the avoidance of doubt, User Content does not include personal information of any Authorized User or Signer, or any document, such as a contract, disclosure, or notice deposited into any Flowtrics Service for processing (“eDocuments”), or any information submitted for inclusion in or in connection with such eDocuments.
4.3.2 Screening & Removal. You acknowledge and agree that Flowtrics and its designees may or may not, at Flowtrics’s discretion, pre-screen User Content before its appearance on the Site or Flowtrics Services, but that Flowtrics has no obligation to do so. You further acknowledge and agree that Flowtrics reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit, or remove any User Content that is contributed to the Site or Flowtrics Services. Without limiting the foregoing, Flowtrics and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Flowtrics’s sole discretion. You acknowledge and agree that Flowtrics does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
- RESTRICTIONS ON USE OF THE SITE
5.1 By using the Site, including any Flowtrics Service, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
5.1.1 Is illegal, or violates any federal, state, or local law or regulation;
5.1.2 Advocates illegal activity or discusses illegal activities with the intent to commit them;
5.1.3 Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
5.1.4 Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
5.1.5 Interferes with any other party’s use and enjoyment of the Services;
5.1.6 Attempts to impersonate another person or entity;
5.1.7 Is commercial in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
5.1.8 Falsely states, misrepresents, or conceals your affiliation with another person or entity;
5.1.9 Accesses or uses the Account of another user without permission;
5.1.10 Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
5.1.11 Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site, or any of the Flowtrics Services;
5.1.12 “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
5.1.13 Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
5.1.14 Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent;
5.1.15 Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Site;
5.1.16 Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
5.1.17 Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Site;
5.1.18 Uses the Flowtrics Services for benchmarking, or to compile information for a product or service;
5.1.19 Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site or Flowtrics Services, by any means except as provided for in these Terms or with the prior written consent of Flowtrics; or
5.1.20 Attempts to do any of the foregoing.
If you believe content on the Site violates the above restrictions, please contact us here: (https://support.Flowtrics.com/contactSupport).
5.2 In addition, Customers shall not, and shall not permit others to, do the following with respect to the Flowtrics Services:
5.2.1 Use the Flowtrics Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms, any applicable Subscription Plan or Flowtrics’s Reasonable Use Policy (https://www.Flowtrics.com/company/reasonable-use-policy) incorporated herein by reference;
5.2.2 License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Flowtrics Services or Flowtrics’s then-current technical and functional documentation for the Flowtrics Services (“Documentation”) available for access by third parties except as otherwise expressly provided in these Terms; or
5.2.3 Access or use the Flowtrics Services or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Flowtrics Services or (ii) allowing access to your Account by a direct competitor of Flowtrics.
5.3 You may not frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Site, provided that you acknowledge and agree that you will not link the Site to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Site effective immediately.
5.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, except as otherwise expressly provided herein, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
- TERMS SPECIFIC TO FLOWTRICS SERVICES
7.1 Right to Use Flowtrics Services. Subject to these Terms, Flowtrics will provide the Flowtrics Services to Customers in accordance with each Customer’s Subscription Plan, and Flowtrics grants to each Customer a limited non-exclusive, non-transferable right and license during the Term, solely for its internal business purposes and in accordance with the Documentation, to: (a) use the Flowtrics Services; (b) implement, configure, and, through its Account Administrator(s), permit its Authorized Users to access and use the Flowtrics Services up to any applicable limits or maximums; and (c) access and use the Documentation.
7.1.1 Authorized Users. Authorized Users of Customer must be identified by a unique email address and user name and two or more natural persons may not use the Flowtrics Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the Flowtrics Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the Flowtrics Services solely to support Customer’s internal business purposes.
7.1.2 Account Administrator. Account Administrator. Customer may assign and expressly authorize an Authorized User(s) as its agent to manage Customer’s Account, and management of Customer’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, managing templates, executing approved campaigns and events, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.
7.2 Payment Terms.
7.2.1 Subscription Plan. ;The prices, features, and options of the Flowtrics Services depend on the Subscription Plan selected as well as any changes instigated by Customer. Flowtrics does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
7.2.2 No Refunds. Customer will timely pay Flowtrics all fees associated with its Subscription Plan, Account, or use of the Flowtrics Services, including, but without limitation, by Authorized Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS. Charges for pre-paid Subscription Plans will be billed to Customer in advance. Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears unless otherwise specified in the Subscription Plan.
7.2.3 Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Subscription Plan either through the payment method you provide, such as a credit card, or through an intermediary provider such as iTunes, Google Play, or a similar app store (“App Store”). Customer must promptly notify Flowtrics of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES FLOWTRICS OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE FLOWTRICS SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term (each as defined in Section 8.2.3, below) until Customer cancels as set forth in Section 8.2 of these Terms.
7.2.4 Late Fees & Collection Costs. If Flowtrics does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Flowtrics to collect any amount that is not paid when due. Flowtrics may accept payment in any amount without prejudice to Flowtrics’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Flowtrics may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from Flowtrics.
7.2.5 Invoices. Flowtrics will provide billing and usage information in a format we choose, which may change from time to time. Flowtrics reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.
7.2.6 Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. Customer agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from Customer’s payment card issuer or App Store until submission of the accumulated charge(s).
7.2.7 Benefit Programs. You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, “Benefits”) through a business or government agreement with us (“Business Terms”). Any and all such Benefits are provided solely as a result of the corresponding Business Terms and such Benefits may be modified or terminated without notice. If you use the Flowtrics Services and a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents. If you are enrolled in a Subscription Plan or receive certain Benefits tied to Business Terms with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.
7.2.8 Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on Flowtrics’s net income (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Flowtrics Services. Where the responsibility to remit Taxes falls upon Flowtrics, the Taxes will be added to the payment and payable to Flowtrics at the same time as the payment. Taxes shall not be deducted from the payments to Flowtrics, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Flowtrics receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that Flowtrics can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for Tax purposes. Flowtrics’s and Customer’s obligations under this Section 7.2.8 (Tax Responsibility) shall survive the termination or expiration of these Terms.
7.2.9 Intermediary Provider Billing. If your Subscription Plan is based on intermediary provider billing, your intermediary provider will automatically charge your App Store account monthly for the cost of the Subscription Plan and any applicable taxes. If you are not current with your Subscription Plan payments, we reserve the right to terminate your account, suspend your access to your Subscription Plan, or convert your Subscription Plan subscription to a non-subscription account. You will be responsible for paying all past due amounts.
7.3 Free Trial and Special Offers for Flowtrics Services; Early Access Programs
7.3.1 Free Trial and Special Offers for Flowtrics Services.
- If you register for a free trial, promotional offer, or other type of limited offer for use of Flowtrics Services (“Free Trial”), you may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into these Terms by reference and are legally binding. This Section 7.3 (Free Trial and Special Offers for Flowtrics Services; Early Access Programs) supersedes and applies notwithstanding any conflicting provisions with regard to access and use of a Free Trial.
- Flowtrics reserves the right to reduce the term of a trial period or end it altogether without prior notice.
- The version of the Flowtrics Services that is available for a Free Trial may not include or allow access to all features or functions. ANY DATA THAT A CUSTOMER ENTERS INTO THE FLOWTRICS SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE CUSTOMER: (a) PURCHASES A SUBSCRIPTION PLAN TO FLOWTRICS SERVICES THAT IS EQUIVALENT TO OR GREATER THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
- Notwithstanding any other provision of these Terms, including without limitation the warranties described in Section 9 (Warranties and Disclaimers) or any service-specific terms and conditions applicable to a particular Flowtrics Service, including exhibits and attachments accompanying such schedule (“Service Schedule”), during a Free Trial the Flowtrics Services are provided “AS IS” and “as available” without any warranty that may be set forth in these Terms, and FLOWTRICS DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND FLOWTRICS’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE FREE TRIAL IS $100.
7.3.2 Early Access Programs.
From time to time, Flowtrics may offer certain Early Access Services (defined below) to you. By accessing such Early Access Services, you indicate that you have read, understood, and expressly agree to the EAP terms contained in the Service Schedule for Early Access Program(s) below.
7.4.1 Data Generally. You shall be responsible for data that you provide or use in Flowtrics Services. You are solely responsible for determining the suitability of the Flowtrics Services for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Flowtrics Services and Site.
7.5 Customer Warranties. Customer hereby represents and warrants to Flowtrics that: (a) it has all requisite rights and authority to use the Flowtrics Services under these Terms and to grant all applicable rights herein; (b) it is responsible for all use of the Flowtrics Services associated with its Account; (c) it is solely responsible for maintaining the confidentiality of its Account names and password(s); (d) it agrees to immediately notify Flowtrics of any unauthorized use of Customer’s Account of which it becomes aware; (e) it agrees that Flowtrics will not be liable for any losses incurred as a result of a third party’s use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) it will use the Flowtrics Services for lawful purposes only and subject to these Terms; (g) any information it submits to Flowtrics is true, accurate, and correct; and (h) it will not attempt to gain unauthorized access to the System or the Flowtrics Services, other accounts, computer systems, or networks under the control or responsibility of Flowtrics through hacking, cracking, password mining, or any other unauthorized means.
7.6.1 Confidential Information. “Confidential Information” means (a) for Flowtrics and its Affiliates (defined in 8.2.5 below), the Flowtrics Services, EAP Services (if applicable) and Documentation; (b) for Customer and its Affiliates (defined in 8.2.5 below), Customer Data; (c) any other information of a party, including its Affiliates, that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the Recipient), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing party; and (d) any amendment to the specific terms and conditions of these Terms between the parties. Confidential Information shall not include any information that: (i) was or becomes generally known to the public through no fault or breach of these Terms by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of the disclosing party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
7.6.2 Restricted Use and Nondisclosure. During and after the Subscription Term (defined in Section 8.2.3 below), the party receiving Confidential Information (“Recipient”) will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
7.6.3 Required Disclosure. If Flowtrics is required by law to disclose Confidential Information, Flowtrics will give prompt written notice to Customer before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist Customer to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
7.6.4 Ownership. Notwithstanding any other provision of these Terms, Flowtrics acknowledges that, as between the parties, all Confidential Information it receives from Customer, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by Customer. Nothing in these Terms grants Flowtrics any right, title or interest in or to any of the Customer’s Confidential Information. Flowtrics’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
- TERM AND TERMINATION
8.1 Termination – Site Visitors. A Site Visitor may terminate its use of the Site at any time by ceasing further use of the Site. Flowtrics may terminate your use of the Site and deny you access to the Site at our sole discretion for any reason or no reason, including for violation of these Terms.
8.2 Term and Termination – Customers.
8.2.1 Suspension of Access to Flowtrics Services. In accordance with these Terms, Flowtrics may suspend any use of the Flowtrics Services, remove any content or disable or terminate any Account or Authorized User that Flowtrics reasonably and in good faith believes violates these Terms. Flowtrics will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless Flowtrics reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the Flowtrics Services or a third party. Under circumstances where notice is delayed, Flowtrics will provide the notice if and when the related restrictions in the previous sentence no longer apply.
8.2.2 Term. The period of effectiveness of these Terms, with respect to Flowtrics Services, begins on the date the Customer accepts these Terms and continues until the Customer’s Subscription Plan expires or its use of the Flowtrics Services ceases (including as a result of termination in accordance with this Section 8.2), whichever is later (“Term”).
8.2.3 Subscription Term and Automatic Renewals. Flowtrics’s Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to Flowtrics Services or contacting us here: (https://flowtrics.com/privacy-policy/); (c) Flowtrics declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending on the method you choose (“Renewal Term”).
Promotional codes may only be used for your first Subscription Term. If you purchased your Subscription Plan with a promotional code, each time your Subscription Plan renews you will be charged the full annual billing amount. If your Subscription Plan is ever terminated for any reason, and you purchase another Subscription Plan, you shall not be eligible to use a promotional code.
We reserve the right to modify, terminate, or otherwise amend the fees and features associated with your Subscription Plan. We may also recommend that you purchase a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. Before we change the fees and charges in effect, or add new fees and charges, we will give you advance notice of at least thirty (30) days. If we provide you such advance notice, your continued use of the Flowtrics Services after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may terminate your Subscription Plan as described in Section 8.2.4. If you accept the new Subscription Plan, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
8.2.4 Termination by Customer. You may terminate your Account at any time upon ten (10) days’ advance written notice to Flowtrics. If you wish to terminate, you must provide notice by contacting us here: (https://flowtrics.com/privacy-policy/). If you purchased your Subscription Plan through an external service, such as an App Store, you must use the tools made available by those services to manage and/or terminate your Subscription Plan. Section 7.2.2 notwithstanding, if a Customer terminates its annual Subscription Plan within the first thirty (30) days of the initial Subscription Term, it may submit a written request to Flowtrics for a refund of the fees paid to Flowtrics for the initial Subscription Term, which Flowtrics will consider, without obligation, in good faith. Flowtrics has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first thirty (30) days of the initial Subscription Term, or if there has been a violation of other Terms herein, or if records indicate substantial productive use took place during that period.
8.2.5 Default; Termination by Flowtrics. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it or an Authorized User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the Flowtrics Services; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the Flowtrics Services by the Customer (or its Authorized Users or Signers) creates legal risk for Flowtrics or presents a threat to the security of the Flowtrics Services or Flowtrics’s customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the Flowtrics Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. A Flowtrics “Affiliate” means any legal entity that Flowtrics, Inc. owns, that owns Flowtrics, Inc. or that is under common control with Flowtrics, Inc. A Customer “Affiliate” means any legal entity that Customer owns, that owns Customer or that is under common control with Customer. “Control” and “own” mean possessing greater than 50% interest in an entity or the right to direct the management of the entity.
8.2.6 Effect of Termination. If these Terms expire or are terminated for any reason: (a) Customer will pay to Flowtrics any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of Customer’s liabilities to Flowtrics that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Site and Flowtrics Services and intellectual property will immediately terminate in accordance with these Terms; (d) Flowtrics’s obligation to provide any further services to Customer under these Terms will immediately terminate, except any such services that are expressly to be provided following expiration or termination of these Terms; and (e) the provisions of Section 3 (Usage and Access Rights), Section 4 (Ownership), Section 5.3 (Restrictions on Use of the Site), Section 5.4 (Compliance with Terms), Section 6 (Privacy), Section 7.2.2 (No Refunds), Section 7.2.7 (Benefit Programs), Section 7.2.8 (Tax Responsibility), Section 7.3 (Free Trial and Special Offers for Flowtrics Services; Early Access Programs), Section 7.4 (Data), Section 7.6 (Confidentiality), Section 8.2.6 (Effect of Termination), Section 9 (Warranties and Disclaimers), Section 10 (Indemnification Obligations), Section 11 (Limitations of Liability), and Section 12 (General) will survive, as well as provisions designated to survive under any Service Schedules and accompanying attachments and Exhibits to these Terms.
- WARRANTIES AND DISCLAIMERS
9.1 THE FLOWTRICS SERVICES, DOCUMENTATION, AND SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOUR USE OF THE FLOWTRICS SERVICES, DOCUMENTATION, AND SITE SHALL BE AT YOUR SOLE RISK. FLOWTRICS AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“FLOWTRICS PARTIES”): (a) MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DO NOT WARRANT THAT THE FLOWTRICS SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THE FLOWTRICS SERVICES, DOCUMENTATION, OR SITE.
9.2 THE FLOWTRICS PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT FLOWTRICS SERVICES, DOCUMENTATION, AND SITE HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR COMPLETENESS OF THE FLOWTRICS SERVICES, DOCUMENTATION, AND SITE CONTENT AND ASSUME NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF FLOWTRICS SERVICES, DOCUMENTATION, AND SITE; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SITE; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA FLOWTRICS SERVICES, DOCUMENTATION, AND SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FLOWTRICS TO ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
9.3 THE FLOWTRICS PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, AND THE FLOWTRICS PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE.
9.4 If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
9.5 You may elect to receive authentication, notification and/or eDocument delivery messages by text (“SMS Messages”) at the mobile number you provide as part of your use of the Flowtrics Services. You represent that you are the subscriber of the mobile service at the mobile number provided, or that you are otherwise authorized by the subscriber to receive SMS Messages at such mobile number as part of your use of the Flowtrics Services. By electing to receive and send SMS Messages, you acknowledge that message and data rates may apply under your agreement with your provider of mobile communication services (“Mobile Service Provider”). You further understand and acknowledge that your Mobile Service Provider’s network services are outside of Flowtrics’s control and we are not responsible or liable for any issues arising therefrom. Flowtrics will not be liable for any of the following: a) failure of delivery of any content via SMS Message; b) any delays in transmission of SMS Messages; or c) any service or other changes implemented by your Mobile Service Provider impacting the receipt or sending of SMS Messages as part of your use of the Flowtrics Services.
9.6 Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as in this Section 9 or below in Section 11. Accordingly, some of these limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 9 and Section 11 specifically do apply to you.
- INDEMNIFICATION OBLIGATIONS
10.1 You will defend, indemnify, and hold us, our Affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Site; (b) violation of these Terms by you or your Account Administrator(s) or Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and content of all Customer Data processed by the Flowtrics Services; or (e) any products or services purchased or obtained by you in connection with the Site.
10.2 Flowtrics retains the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
- LIMITATIONS OF LIABILITY
11.1 Disclaimer of Consequential Damages.
11.1.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, FLOWTRICS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
11.1.3 Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section 11.1 may not apply to you.
11.2 Cap on Damages. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE AND FLOWTRICS SERVICES (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO FLOWTRICS FOR THE FLOWTRICS SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
11.3 Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
11.4 Jurisdictional Limitations.
11.4.1 Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law). If you are a New Jersey resident, the limitations in Section 11 specifically do apply to you.
11.4.2 Flowtrics’s liability to you if you are domiciled in Germany is limited as described in Section 12.9 below.
12.1 Third Party Content. We may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. FLOWTRICS IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party websites or resources on the Site.
12.2 Relationship. At all times, you and Flowtrics are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of Flowtrics or are otherwise authorized to bind or commit Flowtrics in any way without Flowtrics’s prior written authorization.
12.3 Trade Restrictions. You acknowledge that the Site, Documentation, and/or Flowtrics Services and any related products, information, documentation, Software, technology, technical data, and any derivatives thereof, that Flowtrics makes available (collectively “Excluded Data”) are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories currently including, but not limited to, Cuba, the Crimea region of the Ukraine and Sudan, Iran, North Korea and Syria (“Trade Restrictions”). You represent and warrant that you are not: (i) located in an embargoed country or territory, (ii) under the control of an entity organized in or a resident of an embargoed country or territory, (iii) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (iv) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and U.S. Government EU Dual-Use Regulation EC 428/2009. You are solely responsible for complying with Trade Restrictions for all Excluded Data and any of its content transmitted through the Site.
12.4 Assignability. You may not assign your rights or obligations under these Terms without Flowtrics’s prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. Flowtrics may freely assign its rights, duties, and obligations under these Terms.
12.5 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the Flowtrics Services will be effective only if it is in writing and sent using: (a) Flowtrics Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in Customer’s registration information or on the Site for Flowtrics, with a copy, in the case of Flowtrics, to legal@Flowtrics.com. Customer or Flowtrics may change its address for receipt of notice by notice to the other party in accordance with this Section 12. Notices are deemed given upon receipt if delivered using Flowtrics Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
12.6 Force Majeure. Except for any payment obligations, neither you nor Flowtrics will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
12.7 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
12.7.1 You agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 12.7 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms or any prior; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
12.7.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at legal@Flowtrics.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and Flowtrics agree to use their reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with Flowtrics, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
12.7.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms, the parties’ relationship with each other, and/or your use of the Flowtrics Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
12.7.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
12.7.5 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to Flowtrics: Attention Legal, 379 N. University Ave., Suite 208, Provo UTAH 84601; and (c) Send one copy of the Demand for Arbitration to us at: legal@Flowtrics.com.
12.7.6 Fees & Costs. If your claim(s) total is less than US $5,000.00, then: (a) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing; (b) Flowtrics will reimburse your filing fees up to a maximum of US $1,500.00 unless the arbitrator determines that your claims are frivolous; and (c) Flowtrics will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
12.7.7 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
12.7.8 Venue. Arbitration shall be initiated and take place in in San Francisco, California, United States, and you and Flowtrics agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
12.7.9 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FLOWTRICS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
12.7.10 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
12.7.11 Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.
12.8 Entire Terms. These Terms, which include the language and paragraphs preceding Section 1, are the final, complete, and exclusive expression of the agreement between you and Flowtrics regarding the Flowtrics Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Flowtrics Services under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Flowtrics hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on these Terms and conditions of these Terms as offered by Flowtrics. Except as explicitly permitted in these Terms, no modification or amendment of these Terms shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the Subscription Plan; (b) any attachments or appendix(ices) to the Service Schedule(s); (c) the Service Schedule; and (d) these Terms.
12.9 Provisions for Customers Domiciled in Germany. The provisions of this Section 12.9 apply only to Customers who are domiciled in Germany when entering into these Terms.
12.9.1 Flowtrics shall be fully liable for intentional and gross negligence, as well as for any damages arising from injury to life, body or health caused by Flowtrics. In the case of liability for slight negligence, Flowtrics shall be liable only for breach of a material obligation (“Cardinal Duty”) and any such liability shall be limited to typical, foreseeable damages and shall not include liability for lack of economic results, loss of profit, or indirect damages. A Cardinal Duty in the meaning of this Section 12.9.1 is an obligation, the fulfillment of which is essential to the performance of these Terms and on the fulfillment of which the contracting party may therefore rely.
12.9.2 If you are a consumer, nothing in these Terms affects your rights under mandatory German law and these Terms will be interpreted, construed, and enforced in all respects in compliance with mandatory consumer protection laws of Germany. Notwithstanding Section 12.7 above and Section 12.10 below, if you are a consumer, you may submit a claim to enforce your rights under these Terms to the competent courts in Germany.
12.10 Governing Law & Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. For purposes of determining the governing law, you and Flowtrics agree that Flowtrics is the proponent of these Terms. Notwithstanding Customer’s and Flowtrics’s agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party’s rights or property pending the completion of arbitration. Customer and Flowtrics submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A.
12.11 Language and Translations. Flowtrics may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
12.12 Waiver. The waiver by either you or Flowtrics of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
12.13 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
12.14 How to Contact Us. If you have any questions about the Site or Terms, pricing, complaints, or other inquiries, please contact Flowtrics at 379 North University Ave., Provo, UT, 84601, United States, or by calling from the U.S. (858) 356-5343. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.