Terms & Conditions
Last updated on April 6th, 2023
These Flow Finance Inc. Terms and Conditions (these “Terms”) govern your access to and use of the Services and Our Technology.
If you agree to the Agreement on behalf of an entity, you represent that you are authorized to bind that entity; if you sign up for any Services without such authority, you agree that you are accepting the Agreement on your personal behalf.
Please read these terms carefully. Among other things, they require the use of binding individual arbitration to resolve disputes rather than jury trials or class actions. For information about how to opt-out, see Section 11.8 (30-day opt-out period) below.
1.1 We provide bookkeeping Services
Our bookkeeping Services are a solution for bookkeeping and financial organization where we maintain your accounting books based on information provided by you or at your direction. Our bookkeeping Services and any related communications with us are not a substitute for and do not include legal, regulatory, tax, financial, real estate, healthcare, or accounting advice.
1.2 Certain year-end Services
If you are a bookkeeping Services customer for the quarter following your fiscal year end (i.e., your subscription has not been terminated during such period), we may need to perform certain year-end bookkeeping activities at that time as part of your subscription. If you are not a bookkeeping Services customer for the quarter following your fiscal year end, we will not perform year-end bookkeeping activities and will not bear responsibility or liability with respect to any failure to perform year-end bookkeeping activities on your behalf.
1.3 QuickBooks® Online
We use Intuit Inc.'s QuickBooks Online to provide the Services. If you do not already have an account, you authorize us to create one for you. Your and our use of QuickBooks Online will be governed by Intuit Inc.'s Terms of Service and Privacy Statement, and by authorizing us to create an account for you, you agree to Intuit Inc.'s Terms of Service.
1.4 Sole bookkeeper
This Section applies to the extent that we provide bookkeeping Services to you.
You agree that we will be your sole bookkeeper and in performing such Services we must use, record, classify and reconcile your financial transactions and other data to prepare your books. For example, depending upon the Services we provide, we may have to: (a) import transactions to your books in order to reconcile your bank accounts, (b) categorize transactions in your books to expense accounts and to balance sheet accounts for amortization purposes, and/or (c) sync your payroll data via an integration or otherwise. As a result, once we have performed such tasks, any modifications made by you or on your behalf (for example, by another third-party service provider) to your books may adversely impact Services previously performed by us, causing us to have to re-perform such Services in order to resolve any resulting inconsistencies or inaccuracies or to confirm that there are no such inconsistencies or inaccuracies. If you engage another third-party service provider to make changes to your books, or you otherwise make changes to your books directly, while you have engaged us to provide bookkeeping Services, the parties agree to the following remedies, which shall be at our option and in addition to any rights provided by contract, law or in equity: (i) we may delay bookkeeping deliverables that are on a deadline, (ii) we may charge our standard hourly fees for the additional work required to remediate the situation, and/or (iii) we may terminate your subscription at any time upon written notice without a refund of prepaid fees for unelapsed months of any Services. For the avoidance of doubt, this Section 1.4 does not prevent you from managing accounts payable and/or accounts receivable in QuickBooks, and/or processing payroll through QuickBooks.
1.5 We provide the Services at the direction and for the benefit of your management
We provide the Services at the request of, and under the direction of, your management. Your management is responsible for all management decisions and performing all management functions, including (i) setting policies or accepting policy recommendations; (ii) evaluating the reasonableness of underlying assumptions and the adequacy and results of the Services; and (iii) implementation of any findings or recommendations resulting from the Services. We may act upon, and will not have liability for acting upon, instructions in any form (e.g., electronic, written, oral) so long as we reasonably believe that the instructions were actually given by you or on your behalf. You are responsible for the legality of your instructions to us. We are not obligated to identify or offer additional Services.
We prepare deliverables resulting from the Services (for example, excerpts, models, budgets, confirmations, etc.) for use by your management. In preparing deliverables, you agree that we (a) do not have an obligation to independently verify the accuracy or completeness of any facts provided by you or any third party, and (b) do not undertake to update the deliverable if any facts change, unless the Order Form for the services expressly states otherwise. If you elect to present any deliverable to any third party, such presentation must be made solely by you and not by or on behalf of us, and you agree to remove any references to us from the deliverable and/or from the presentation.
1.6 We need and rely on information from you
Our provision of the Services requires that you provide us access to corporate, financial and related information, information technology systems or services, and/or input from you. You agree to timely provide all such information, access and input and reasonably cooperate with us in our provision of the Services. You agree to provide good faith assumptions and accurate and complete representations, information and data, and you agree that we may assume you have done so without further investigation or verification. You agree that late or insufficient information, access or input from you may cause delay in the performance of the Services, inability to provide the Services, or increase in the amount of our fees.
For the avoidance of doubt, if our performance of the Services is prevented or delayed by any act or omission by you or your agents, vendors, consultants, or employees, we will not be in breach of our obligations or otherwise liable for any related costs, charges, or losses incurred by you.
1.7 Unauthorized uses of the Services
Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (v) remove any product identification, proprietary, copyright or other notices from the Services or Software; (v) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or (vi) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Provider of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use. Customer will use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, such as the General Data Protection Regulation, international communications, export laws and the transmission of technical or personal data laws).
1.8 Modifications to the Services
You understand that we may modify, change and/or improve our Services. You agree that we may add or remove functionality or features, and that we may suspend or stop part of the Services altogether. Similarly, because some of our Services are provided by our personnel, we reserve the right to determine from time to time in our sole discretion the personnel assigned to provide the Services to you.
1.9 FlowFi is not a certified public accounting firm
You understand and agree that FlowFi is not a certified public accounting firm and does not provide services that would require a license to practice public accounting. You acknowledge that FlowFi is not a member of the American Institute of Certified Public Accountants (AICPA) and is not governed by any AICPA rules. The Services do not include, and you will not rely on them for: (i) audit, attest, examination, verification, investigation, certification, presentation, or review of financial transactions or accounting records (as such terms are used in the California Business and Professions Code Section 5000 et seq. (“California Public Accountancy Law”)); (ii) independent advice relating to accounting procedure or to the “recording, presentation, or certification of financial information or data” within the meaning of the California Public Accountancy Law; (iii) preparation or certification of reports on audits or examinations of books or records of account, balance sheets, and other financial, accounting and related schedules, exhibits, statements, or reports that are to be used for publication, for the purpose of obtaining credit, for filing with a court of law or with any governmental agency, or for any other purpose, as contemplated by the California Public Accountancy Law; (iv) legal or regulatory advice regarding any of your business practices, including with respect to their appropriateness or legality; or (v) unless otherwise expressly included on an Order Form, tax advice or tax return preparation (although we will provide bookkeeping assistance to your tax preparer of choice, and/or you can subscribe for tax Services, which are provided separately from our bookkeeping Services). You should seek the services of a duly licensed professional in connection with any of the foregoing. In particular, in compliance with applicable law and accounting standards regarding auditor independence, we cannot (and do not) make any representation or warranty whether any financial records are compliant with GAAP, IFRS or any other accounting standards or rules.
2. Technology and Data
2.1 Our Technology; Internal Software
To facilitate the provision of the Services, we may provide your designated users (each, a “User”) with access to and use of functionality of website(s), cloud software services, software tools, automated forms and other technologies developed by or for us (collectively, “Our Technology”). You are responsible for: (a) the confidentiality of User access credentials that are in your possession or control; (b) setting up appropriate internal roles, permissions, policies and procedures for the safe and secure use of Our Technology, (c) your Users' use of Our Technology; and (d) your Users' compliance with the Agreement, including our Acceptable Use Policy, and applicable laws. You must notify us promptly if you become aware, or reasonably suspect, that your account's security has been compromised.
To efficiently provide the Services, we use certain internal technologies and tools developed by or for us, such as integrations with Third-Party Services, software rules, checklists and other technologies (collectively, “Internal Software”). You agree to reasonably cooperate with us to enable us to use Internal Software in the provision of the Services and to refrain from interfering with the operation of Internal Software. If you obtain new, or make changes to, information technology systems or services that contain relevant data for the Services, you agree to notify us promptly and reasonably cooperate with us to facilitate the efficient use of Internal Software.
2.2 Data use
You agree that we may perform benchmarking studies on an aggregated basis across all or a subset of our customers, which will not contain any identifying information that can be attributed to you or any of your Users, customers, vendors, employees or representatives. You consent to our use of Customer Data for the purpose of developing and/or performing such benchmarking studies.
2.3 Intellectual Property Rights
Subject to the limited rights expressly granted in the Agreement, as between the parties you retain all rights, title and interest, including all Intellectual Property Rights, in and to Customer Data. You grant us and our subcontractors a limited license to use the Customer Data to provide, protect and improve the Services and to perform our rights and obligations under this Agreement.
Subject to the limited rights expressly granted hereunder, as between the parties we own all rights, title and interest, including all Intellectual Property Rights, in and to Our Technology and Internal Software. We grant your Users a non-exclusive license to use Our Technology for the purpose of facilitating the provision of our Services to you during the term of the Agreement. All rights not expressly granted in this Agreement are reserved by us.
Each party represents and warrants to the other that it has the authority, including any and all necessary consents, to grant the licenses above.
2.4 Third-Party Services
Our Services, Our Technology and/or Internal Software can transfer data from or to, or integrate with, Third-Party Services (e.g., your payroll software provider). We do not endorse or make any representation, warranty or promise regarding, and do not assume any responsibility for, any Third-Party Service, regardless of whether it is described as “required,” “recommended” or the like and regardless of whether the Third-Party Service is included in your Order Form. You should review applicable terms and policies, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before obtaining any Third-Party Service. You agree to (a) maintain all subscriptions to Third-Party Services that we require for the provision of the Services and Our Technology or the operation of Internal Software; (b) abide by the terms of your agreements for any Third-Party Services and indemnify us and hold us harmless from any claim related to a breach by you of any such agreement or from any instructions by you to us that would constitute a breach of any such agreement, (c) set up appropriate internal roles, permissions, policies and procedures for the safe and secure use of Third-Party Services, and (d) if we agree to procure Third-Party Services for you (for example, QuickBooks Online), reimburse us for such costs. We have no obligation to provide support for Third-Party Services and do not guarantee the initial or continuing interoperability of the Services, Our Technology and Internal Software with any Third-Party Services. If a Third-Party Provider ceases to make the Third-Party Services available for interoperation with Our Technology or Internal Software for any reason, we may cease providing certain features of Our Technology and/or modify the Services without liability.
2.5 Login Credentials
If you provide us with login credentials (for example, an account name or number, password, answers to security questions (collectively, “Login Credentials”)), you (a) give us permission and a limited power of attorney to use them to login to, or create an integration with, these other third-party websites and services and access, transfer, reformat, and manipulate your account on your behalf in performance of the Agreement; and (b) represent to us that you have the authority to give us this permission. You consent to our use of Login Credentials to provide the Services and perform our rights and obligations under the Agreement. We will maintain Login Credentials in encrypted form, and we will only use them pursuant to the Agreement or as otherwise directed by you.
2.6 Facilities and data transfer
FlowFi requires that all facilities that FlowFi uses to store Customer Data or Login Credentials adhere to reasonable security standards. As part of providing the Services, we may transfer, store and process Customer Data within the United States. By using the Services, you consent to this transfer, processing and storage of Customer Data.
If you provide us with feedback, ideas, requests, recommendations or suggestions about the Services (“Feedback”), then we may use that information without obligation to you, and you grant FlowFi a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.
2.8 California Consumer Privacy Act and Virginia Consumer Data Protection Act
The following terms apply to the extent and while you are subject to the CCPA or VCDPA and FlowFi processes personal information (as defined in the CCPA) or personal data (as defined in the VCDPA) as part of Customer Data (“Personally Identifiable Customer Data”):
3.1 Confidential Information defined
“Confidential Information” means information of one party (or its Affiliates) disclosed to the other party (“recipient”) pursuant to the Agreement that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data and Login Credentials are your Confidential Information. Confidential Information does not include information that (i) is known to the recipient without a confidentiality obligation prior to its disclosure to the recipient, (ii) is independently developed by the recipient without use of the other party's Confidential Information, (iii) is rightfully shared with the recipient by a third party without confidentiality obligations, or (iv) was or becomes publicly known through no fault of the recipient.
3.2 Non-use and non-disclosure obligations
Subject to Sections 3.3 and 3.5, the recipient will (a) use the other party's Confidential Information only to exercise rights and fulfill obligations under the Agreement, and (b) use reasonable care to protect against unauthorized disclosure of the other party's Confidential Information to any parties other than the recipient's Delegates who need to know it and who have a legal obligation to keep it confidential. The recipient agrees to ensure that its Delegates are subject to the same or substantially similar non-disclosure and non-use obligations.
3.3 Permitted disclosure of Confidential Information
Regardless of any other provision in the Agreement, the recipient or its Affiliates may disclose the other party's Confidential Information (a) in accordance with a Legal Process, subject to Section 3.3.2 (Legal Process notification); (b) with the other party's written consent; or (c) in connection with performing its obligations and/or enforcing its rights under the Agreement.
3.3.2 Legal Process notification
The recipient will use commercially reasonable efforts to notify the other party before disclosing that party's Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is legally prohibited from giving notice.
The recipient and its Affiliates will comply, at the expense of the other party, with the other party's reasonable requests to oppose disclosure of its Confidential Information pursuant to Legal Process.
3.3.4 Expenses of Production
f (a) you request that we, or (b) we are required by law or Legal Process in a proceeding or investigation to which we are not a named party to, produce documents or personnel as witnesses, or to otherwise make information relating to the Services available to a third party, you agree to reimburse us for our professional time, at our then-current standard hourly rates, and expenses, including reasonable attorneys' fees and expenses, incurred in producing documents or personnel or providing information pursuant to such requests or requirements.
3.4 Injunctive Relief
The parties agree that a breach of the recipient's confidentiality obligations in this Section 3 may cause irreparable damage, which money cannot satisfactorily remedy, and therefore the other party may seek injunctive relief for any threatened or actual breach of Section 3 without the need to prove damages or post a bond or other surety.
3.5 Third-Party Infrastructure
The Services, Our Technology and Internal Software operate over the internet via networks only part of which are within our control. Our obligations in Section 3.2 apply only to networks and equipment within our control, and we are not responsible for any delay, loss, interception, or alteration of Customer Data or other Confidential Information on a network or infrastructure outside of our control.
4. Fees and Payment
We base our subscription fees for Services on certain facts about your business. You agree to provide us with complete and accurate information so we can determine the applicable subscription. If the information is not complete or accurate, materially changes, or you request an expanded or different scope of subscription Services, we may propose a subscription that corresponds to the revised information or your request and reserve the right to terminate the affected Services or the Agreement without liability if we are unable to reach an agreement with you on the revised subscription. Subscription fees (including fees for hourly Services subscribed for on a prepaid basis) are prepaid before or at the start of the subscription period and cannot be carried over to future subscription periods.
As-incurred hourly Services, and all other Services that are not included in your subscription or quoted as a fixed fee, will be billed at our then-current standard hourly rate for the respective Service (as we may update it from time to time). For the avoidance of doubt, the publication of an hourly rate for a Service does not imply that such Service does not incur subscription fees as set forth in your Order Form.
Customer shall pay the fees (“Fees”) as set forth in Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Order Form. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
4.2 Fee and scope updates
From time to time, we may update our list prices for the Services, or, as our Services evolve, we may change the scope of, or subscription model for, certain Services. If we increase your subscription fees (and/or any related fees, such as usage-based fees) and/or materially change the scope of subscription Services we provide to you, we will provide you with advance written notice of such increase or change at least 30 days prior to your next Renewal Period. If you do not terminate your subscription within such 30-day period, you agree that your continued use of the Services constitutes your agreement to pay, and your authorization for us to collect payment from you in accordance with Section 4.3 of, such increased or updated fees.
Updates to our hourly fees become effective immediately for future hourly Services. We will use commercially reasonable efforts to notify you of such updates prior to their effectiveness.
FlowFi will collect payment for the fees payable by you under the Agreement automatically via ACH. You represent that the account you are authorizing for ACH is an account that is not primarily used for personal, familial or household purposes. By authorizing us to use ACH, you agree to the NACHA Operating Rules that govern ACH payments. Fees are exclusive of taxes, which you're responsible for if applicable. You authorize FlowFi and/or its payment processor to initiate entries to your business bank checking accounts on file with FlowFi (using your business address on file) in order to pay amounts that you owe to FlowFi (including for any Renewal Terms as those payments come due), and, if necessary, to initiate adjustments for any transactions credited or debited in error. We may immediately suspend provision of any or all Services if your account is past due with respect to the payment of fees for any Services or any other amounts owed by you to us. You agree to pay any fees for Services owed by your Affiliates. Except to the extent expressly set forth in the Agreement, all payments are non-refundable and non-creditable.
We reserve the right to request prepayment before starting the provision of any Services. In the case of nonpayment of any amount due and owed under the Agreement, in addition to such unpaid amounts you will reimburse us for all costs and fees incurred to collect the unpaid amounts.
5. Term and Termination
5.1 Initial term; Set Periods
The Agreement is effective on the date you sign an Order Form or you otherwise agree to these terms (for example, by clicking through an online agreement) (the “Effective Date”). Your initial subscription term will begin at the subscription start date and continue, unless terminated earlier, for the initial period for which you have paid or owe subscription fees, or if you do not owe prepaid subscription fees then for the period set forth in your Order From or the completion of the Services described in your Order Form (the “Initial Term”). Subscription terms for different types of Services (for example, bookkeeping and tax preparation) may differ. Certain subscription Services involve periods set by law (for example, a tax year) or by your management (for example, a fiscal year) ("Set Periods"), and aligning the subscription term of such Services with the respective Set Period leads to operational efficiency. Therefore, if the start date of your subscription to Services differs from the start date of an applicable Set Period, you authorize us to adjust the start date of your subscription to align it to the start date of the Set Period, with a corresponding adjustment of billing dates. Such alignment of start dates will not result in an increase of your subscription fees, unless otherwise authorized by the Agreement.
5.2 Automatic renewal
Upon the end of the Initial Term and any Renewal Term, your subscription for the respective Services will automatically renew, without the need to execute a new Order Form or other agreement, for the same duration (a “Renewal Term”) as the immediately preceding term of such Services, unless you give us non-renewal notice (via firstname.lastname@example.org) or we give you notice to the email address associated with your account. Non-renewal notice must be provided at least (a) seven (7) days for monthly or quarterly subscriptions; or (b) thirty (30) days for annual subscriptions, in each case, prior to the end of the then-current Initial Term or Renewal Term, as applicable.
5.3 Termination; Withdrawal
Either party may terminate the Agreement if the other party has materially breached the Agreement upon written notice to the breaching party of the breach and an opportunity to cure of at least 30 days.
We may withdraw from providing any or all of the Services at any time by providing notice of termination of the Agreement or specific Services to you via the email address we have on file. In the event we terminate the Agreement or any Services for any reason other than your violation of Section 1.8 (Unauthorized uses of the Services) or another breach of the Agreement by you, we will give you a refund of prepaid fees for unelapsed months of the terminated Services. For the avoidance of doubt, you agree that we will not be obligated to issue a refund if our withdrawal is caused by your breach of the Agreement, including your failure to pay any fees when due or to timely provide information, systems access or input that we have reasonably requested for the provision of the Services.
You may stop using the Services at any time without cause, however we will not be obligated to provide a refund of any prepaid subscription fees, and you are obligated to pay the remaining fees owed for the term listed in the Order Form.
5.4 Effect of termination or expiration
In the event your subscription to bookkeeping Services ends, we will be available to transfer to you the “primary administrator” status for the QuickBooks Online account that was maintained for you by FlowFi, so that you can elect to maintain that subscription with Intuit or export your data.
After termination of the Agreement or any specific Services, any support or information production related to the terminated Services shall be at our sole discretion, and if we perform such support or information production you agree to reimburse us for our professional time at our then-current standard hourly rates. We do not guarantee the availability of any documents or information after such termination. You agree that it is your responsibility to retain and protect your records for possible future use, including potential examination by any government or regulatory agencies.
Sections 2.2, 2.3, 2.4, 2.7, 5.4, 5.5, and 8 - 13 (inclusive) will survive the termination or expiration of the Agreement. Sections 2.8 and 3 will survive for three years after termination or expiration of the Agreement, and Section 6 will survive for the period set forth therein.
6. Personnel Non-Solicitation
We incur recruiting, training, education and other non-recoverable costs for the personnel assigned to provide the Services to you. We are willing to incur such costs in reliance on your promises in this Section. You agree not to solicit for hire, directly or indirectly, on behalf of yourself or for any third party, any then-current employee or contractor of ours who has been made known to you in connection with the Services (“Covered Personnel”) during the term of the Agreement and for one year thereafter. This Section does not prohibit you from soliciting or hiring any individual as a result of a general employment advertisement not specifically directed at Covered Personnel.
As a reasonable estimate of our personnel replacement costs and not as a penalty, you agree to pay us $25,000 for every individual Covered Personnel who has terminated their employment or contractor relationship with us as a result of your breach of this Section.
8. Warranty disclaimer
THE WARRANTIES STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FlowFi. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, WE, OUR AFFILIATES, OUR THIRD-PARTY SERVICE PROVIDERS, AND OUR AND THEIR LICENSORS, SUPPLIERS AND DISTRIBUTORS (THE “PROVIDER ENTITIES”) MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, OUR TECHNOLOGY, OR OUR TOOLS. THE SERVICES, OUR TECHNOLOGY AND OUR TOOLS (INCLUDING AS INTEGRATED WITH ANY OTHER APPLICATIONS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NO WARRANTY IS MADE THAT THE SERVICES, OUR TECHNOLOGY, OUR TOOLS OR THE RESULTS OF THEIR USE WILL MEET YOUR NEEDS OR EXPECTATIONS, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THE RESULTS THEREFROM WILL BE ACCURATE OR RELIABLE, AND/OR WILL COMPLY WITH ANY LAW OR LEGAL REQUIREMENT. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE FULLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE STRICTLY LIMITED TO A PERIOD OF 60 DAYS FROM THE DATE OF YOUR EXECUTION OF THE ORDER FORM, OR DELIVERY OF THE SERVICE, WHICHEVER IS SOONER.
9. Limitation of liability
THE CONSIDERATION WHICH WE ARE CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY THE PROVIDER ENTITIES OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR AMOUNTS DUE TO US UNDER THIS AGREEMENT AND INDEMNITY OBLIGATIONS SET FORTH IN SECTION 10 BELOW, THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM OR CORPORATION ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF THE AMOUNT YOU PAID FOR THE NONCONFORMING SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED US DOLLARS, WHICHEVER IS GREATER.
The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the provision of the Service and that, were we to assume any further liability other than as set forth herein, such fees would have to be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
You shall defend, indemnify and hold harmless the Provider Entities and their employees, officers, directors, consultants, representatives and agents from and against all damages, losses, liabilities, claims, demands, actions, suits, judgments, settlements, costs and expenses, including all attorneys' fees, that arise from or relate to: (a) your use of and/or our provision of the Services (except to the extent arising directly from our willful misconduct or gross negligence), (b) your violation of the Agreement that injures any third party, (c) any content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity in the Services or Our Technology, of any intellectual property or other right of any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to reasonably assist and cooperate with us in asserting any available defenses and/or defending any legal proceeding.
11. Disputes; Class-action waiver
11.1 Judicial forum for disputes
Except as set forth in Section 11.5 (Arbitration), the parties agree that any and all claims relating to the Agreement or the Services shall exclusively be brought in the State of Delaware, subject to the mandatory arbitration provisions below. Each party consents to the venue and personal jurisdiction of such courts.
11.2 Notice of disputes
If you have a dispute with us, you will promptly send written notice to: Flow Finance Inc., 2052 Bundy Drive #1048, Los Angeles, CA 90025. You agree that if we have a dispute with you, we may contact you by sending notice to the address and/or email address listed on your Order Form.
11.3 Governing law
The Agreement shall be governed in accordance with the laws of the State of Delaware and any controlling U.S. federal law, including the Federal Arbitration Act, without regard to conflict of law principles.
11.4 Informal resolution
Before filing a claim, you and we each agree to try to resolve the dispute by contacting the other party through the notice procedures in Section 11.2 (Notice of disputes). If a dispute is not resolved within 30 days of notice, you or we may bring a formal proceeding.
The parties agree to resolve any and all claims relating to the Agreement or the Services through final and binding arbitration and that the provisions of the Federal Arbitration Act (FAA) (9 U.S.C. §1 et seq.) govern this Agreement, except as set forth below. The parties agree that the American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.
11.6 Exceptions to arbitration
In the event that either party brings a claim or cause of action solely for injunctive relief (i) under Section 3.4 above; (ii) to prevent or stop unauthorized use or abuse of the Services or, in our case, unauthorized use or abuse of Our Technology and/or Our Tools; (iii) to prevent or stop infringement of Intellectual Property Rights; (iv) relating to unlawful acts that threaten future injury to the general public (public injunctive relief); or (v) otherwise, the state and federal courts located in San Francisco County, California shall have exclusive jurisdiction over such claim or cause of action. For the avoidance of doubt, if a party brings a claim or cause of action for injunctive relief under this Section, there shall be no requirement to engage in the informal dispute notice process or arbitration process described herein. In addition, if the dispute between the parties is for amounts that are within the jurisdiction of a small claims court, each party has a right to opt to pursue such small claims directly in small claims court.
11.7 NO CLASS ACTIONS
THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, AND EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR OR YOUR INDIVIDUAL CAPACITY, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT OR BY LAW); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
11.8 30-day opt-out period
If you don't wish to be bound by these arbitration provisions (including its waiver of class and representative claims), you must notify us by emailing email@example.com no later than 30 days after the Effective Date (unless a longer period is required by applicable law). An opt-out notice does not revoke any previous arbitration agreement between us.
11.9 Batch arbitration
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to AAA against us and/or our Affiliate(s) within reasonably close proximity, the arbitration provider shall (a) administer the arbitration demands in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (b) designate one arbitrator for each batch; and (c) provide for a single filing fee due per side per batch. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable AAA rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with us and the arbitration provider to implement this “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This "batch arbitration" provision shall in no way be interpreted as authorizing class arbitration of any kind. We do not agree to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section.
11.10 Future changes to this dispute resolution agreement
If we make any changes to this Section 11 or any successor section (but not including Section 11.2 (Notice of Disputes)), you may reject any such change by notifying us via the procedure set forth in Section 11.8 (30-day opt-out period) within 30 days of the change. It is not necessary to submit a rejection of a future change to this Section 11 if you have properly opted out of arbitration in compliance with the requirements of Section 11.8 (30-day opt-out period).
12.1 Updates to these terms
You understand and agree that from time to time we may amend these terms. We will notify you of any material changes by promptly sending an email or posting a notice in the Services. By continuing to access or use the Services after such notice, you agree that you will be deemed to have agreed to be bound by the modified terms. Notwithstanding the foregoing, if the changes have a materially adverse impact on and are not acceptable to you, then you must notify us within 30 days after receiving notice of the change (via firstname.lastname@example.org). If we cannot accommodate your objection, then the prior terms shall remain in force until the expiration of your then-current subscription period. Any renewed subscription will be governed by the then-current terms.
If one or more of the provisions contained in the Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.
You may not assign the Agreement, or your rights or obligations under it (including any claim or right to sue for damages under the Agreement), in whole or in part and any such assignment is void. We may freely assign the Agreement, or our rights and obligations under it, in whole or in part.
12.4 Electronic notices
We will communicate with you via the email associated with your account with us or the Services' user interface. It is your responsibility to keep your Services account email address up to date so that you are able to receive electronic communications from us.
12.5 Entire agreement; amendments
The Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all prior and contemporaneous agreements, discussions, negotiations, and offers. The parties agree that any term or condition stated in a customer purchase order or in any other customer order documentation (excluding Order Forms) is void. You acknowledge that in entering into the Agreement you have not relied on and will have no rights or remedies in respect of any statement, representation, assurance or warranty other than as expressly set out in the Agreement. Except as specifically stated otherwise in the Agreement, any amendment must be in writing, expressly state that it is amending the Agreement, and must be signed by both parties.
12.6 Order of precedence; interpretation
n the event of an express conflict between these terms and any Order Form, the Order Form shall take precedence and govern. Headings are for information purposes only. The Agreement shall not be interpreted against the drafter.
2.7 Third-party beneficiaries
The Provider Entities are intended third-party beneficiaries of Sections 8 - 10 (inclusive). Except as expressly set forth in the foregoing, there are no other third-party beneficiaries to the Agreement. All Services are for your internal purposes and use, and no third party is intended to rely on any Services, deliverables or materials provided by us.
12.8 No employment, partnership, or agency relationship
Each party is an independent contractor, and except as expressly set forth in the Agreement neither party has any authority to act on behalf of the other. Neither party will represent itself as agent, servant, franchisee, joint venturer, joint employer or legal partner of the other. You agree not to represent our personnel as, or request that our personnel act as, an employee, officer, agent or other representative of your entity. We are entering into the Agreement as principal and not as agent for any Affiliate, and claims under the Agreement may be brought only against us and not against any of our Affiliates.
12.9 No Publicity
Neither party shall make any public statement about the Agreement or the relationship of the parties governed by the Agreement that identifies the other party without the other party's prior written consent, except that while you are a customer, we may use your name and logo in customer lists and our marketing websites at an equal sizing with other customers.
The Services, Our Technology, and derivatives thereof may be subject to U.S. and foreign export laws and regulations. Each party represents and warrants that it is not on any U.S. government denied-party list. You will not permit any User to access or use Our Technology in Russia or in a U.S.-embargoed country or region (which includes the Crimea region, Donetsk People's Republic (DNR), Luhansk People's Republic (LNR) of Ukraine, North Korea, Iran, Cuba, and the Syrian Arab Republic) or in violation of any U.S. export law or regulation. We do not represent or warrant that the Services, Our Technology or Internal Software comply with the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"). You must notify us of any HIPAA compliance requirements prior to entering into the Agreement, or within 30 days of any HIPAA compliance requirements becoming applicable to you and/or us.
12.11 Unfair Competition
You may not use the Services, Our Technology, or any materials provided by us to build a competitive product or service or to benchmark with a product or service not provided by us.
A party's failure or delay to exercise any right under the Agreement will not act as a waiver of such right. Rights may only be waived in writing signed by the waiving party.
12.13 Force Majeure
Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent performance of any obligations (other than the payment of money) under the Agreement is delayed or prevented by an act of God (e.g., a natural disaster, earthquake, accident or epidemic) or another event outside of reasonable control of the party seeking excuse of performance (e.g., acts of war, terrorism, government authority or by another third party outside the party's control).
12.14 Force Majeure
In the event a Service is listed at an incorrect price due to a typographical error or error in pricing information received from our partners or suppliers, we will have the right to refuse or cancel any Order Form at the incorrect price. In such event, if you have already paid the incorrect price, we will promptly refund your payment.
“Agreement” means these terms (including, if applicable, the CFO Services Terms and the Tax Services Terms), the Order Form(s), including any scope(s) of work included or referenced in the Order Form(s), and all other terms and conditions agreed to in writing by you and us regarding the provision of the Services.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“CCPA” means (i) the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq, as amended from time to time including by the California Privacy Rights Act of 2020, and (ii) any regulations promulgated pursuant under, or to implement, the California Consumer Privacy Act of 2018, as amended.
“Control” means control of greater than 50% of the voting rights or equity interests of a party.
“Customer Data” means data provided by you or at your direction for the provision of the Services, and excerpts and reports of such data prepared as part of the Services for you. For the avoidance of doubt, industry knowledge, general inferences from Customer Data across customers (without identifying you), Our Technology, Internal Software and our workpapers are not Customer Data.
“Delegates” means employees, consultants, service providers, agents, and professional advisors of an entity or its Affiliates.
“including” means including, without limitation.
“Intellectual Property Rights” means rights recognized by any jurisdiction with respect to intellectual work product, such as patent rights (including priority rights), design rights, copyrights (including moral rights), mask work rights, trade secret rights, trademarks, service marks, know-how and domain name rights.
“Legal Process” means an information disclosure made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, government investigation, or similar process.
“Order Form” means (i) the ordering document or website page that links to these terms or to a subset of these terms for specific Services (for example, to the Tax Services Terms), and (ii) any other ordering document or workflow provided by us or on our behalf for ordering Services. Order Form expressly excludes any terms in your purchase order or other similar document provided by you in the ordering process.
“party” means a party to the Agreement, unless the context clearly indicates otherwise (e.g., a third party).
“FlowFi” means Flow Finance Inc.. or an Affiliate thereof.
“we”, and “us” means the Services provider entity listed on an Order Form.
“Services” means the back-office services listed on an Order Form and any other back-office services provided to you by us or on our behalf. Unless the context clearly indicates otherwise,“Services” includes Our Technology.
“Third-Party Service” means any product (for example, software, cloud services), tool (for example, integration or development tools), or service (for example, implementation services) provided by a party other than us that is not acting on our behalf (a “Third-Party Provider”).
“VCDPA” means (i) the Virginia Consumer Data Protection Act of 2021, Code of Virginia § 59.1-575, as amended from time to time, and (ii) any regulations promulgated pursuant under, or to implement, the Virginia Consumer Data Protection Act, as amended.
“you” and “your” means the person or entity listed as customer on an Order Form or, if no such person is listed, then the person or entity who accepts the Agreement when ordering Services. “You” shall include your Affiliates only with our prior written consent or if we knowingly and affirmatively provide Services to such Affiliates, and in such case the person or entity named on the Order Form represents that such person or entity is authorized to, and does, (a) bind your included Affiliates to the Agreement and (b) provide on behalf of your Affiliates all consents required by the Agreement. The named person or entity and all permitted and included Affiliates of yours shall be parties to the Agreement and shall be jointly and severally liable under the Agreement.