This is a legal agreement (“Agreement”) between Seed Co. (“Flou”, “Company”, “us”, or “we”) and You (“You”) (collectively, the “Parties”). This Agreement shall be effective on the earliest of (i) the date you indicate your consent to this Agreement in the System or (ii) the last signature date appearing on your Order (“Official Date”). If you are an existing subscriber, then the Flou Commercial Use Terms in effect at the time of your Order’s signing will remain in effect until you subscribe to the current Subscription Plans available on Flou’s Plans Page.
THIS DOCUMENT CONTAINS THE AGREEMENT AND VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MAY APPLY TO YOU. PLEASE READ CAREFULLY.
THESE TERMS REQUIRE THE USE OF INDIVIDUAL ARBITRATION FOR RESOLVING DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1.1. The System. Subject to the terms of this Agreement and according to your Order, Flou grants you a non-exclusive, non-transferable, and non-sublicensable right for the Subscription Term to use the System with the features and functionalities included in the version of the Subscription Plan listed in your Order and as available on the Flou Plans Page at the time you consent to the Order.
1.2. Included Services. Without additional charge, Flou will provide you with:
(a) support, available remotely from 8 a.m. to 5 p.m. PST, Monday through Friday;
(b) self-service online training guides and resources; and
(c) system maintenance, updates, and enhancements.
1.3. Subscription Term. You have access to the System during the Subscription Term and any renewal of the Subscription Term. Unless otherwise specified in the Order or terminated by either Party, each Subscription Term will automatically renew for a period equal to the original Subscription Term. An upgrade will be effective immediately and will not cause a change in the termination date of the current Subscription Term. Downgrades will be effective at the beginning of the next Subscription Term.
1.4. Fees. The System fees are determined based on the Orders and any Upgrades or Downgrades made to your account. Upgrade fees will be prorated based on the remaining period in the current Subscription Term. In case of a downgrade from a paid Subscription Plan to a Free Account, you will still be responsible for any unpaid fees. All fees will be billed after an Order is issued unless the Order specifies otherwise. You are responsible for providing complete and accurate billing information to Flou. You authorize Flou to automatically charge your payment method with the applicable fees on or after the start of a renewal Subscription Term, unless the subscription has been terminated or cancelled in accordance with this Agreement. You acknowledge that you are solely responsible for all fees charged by your credit card issuer or other financial institution, including, but not limited to, overdraft, insufficient funds, and over-the-limit fees. Failure to pay fees owed to Flou (excluding amounts in good faith dispute) for 60 days or more from the invoice due date may result in suspension or termination of your account and will not relieve you from the obligation to pay amounts owed to Flou.
1.5. Taxes. All fees are stated excluding any taxes. You are responsible for paying all taxes associated with your purchases, except for taxes based on Flou's net income.
2.1. Use of the System. You will not directly or indirectly: (a) use the System in any way that violates Flou’s Intellectual Property; (b) access the System to build a competitive product or service; (c) disrupt the integrity, performance, or security of the System; (d) send unsolicited communications, promotions, or advertisements, or spam; or (e) share any content that is unlawful or promotes illegal activities. Flou may suspend your access to the System if Flou reasonably believes you have violated this Agreement. You are responsible for: (a) the accuracy and quality of your Data; (b) maintaining the confidentiality of your login information; (c) complying with all applicable laws governing privacy, protection, transfer, and use of your Data, including, if applicable, European data protection laws; and (d) all inquiries about Personal Data of Data Subjects or Supervisory Authorities (as defined in applicable directives, laws, and/or regulations).
2.2. Electronic Transactions. Certain legal protections for consumers may impose special requirements on electronic transactions involving consumers. You commit to determining if a “consumer” is involved and to comply with all legal requirements. Flou will not be responsible for: (a) determining whether a particular transaction involves a “consumer;” (b) consent and disclosure requirements imposed on such transactions; or (c) complying with such special requirements.
2.3. Electronic Signatures. Certain types of documents may be excluded from electronic signature laws (e.g., wills and family law agreements) or may be subject to specific regulations. You are responsible for determining if documents you wish to use with the System are suitable for use with electronic signatures and for complying with any specific law or regulation. We assume no responsibility for determining whether a document is suitable for use with electronic signatures or for ensuring compliance with a specific law or regulation.
3.1. Ownership of Your Data. (a) You own all rights, title, and interest in and to all Your Data. Subject to this Agreement, you grant Flou, its Affiliates, and applicable contractors a worldwide, non-exclusive, limited-term license to host, process, transmit, and display Your Data solely as necessary (i) to provide, maintain, and update the System; (ii) to prevent or address security or technical issues, including providing support; (iii) to comply with legal requirements, the Privacy Policy, or as expressly permitted in writing by You. (b) To the extent that Data Protection Laws apply to Your Personal Data in the System, as defined in such laws, you represent and warrant that: (i) you have obtained all necessary rights in and to Your Data to grant Flou the license in this Section and to transfer such Personal Data to Flou, (ii) the transfer of Personal Data to Flou does not violate Data Protection Laws or your privacy policy, and (iii) you will comply with your privacy policy and your obligations under Data Protection Laws, including in any instruction you give to Flou for processing Personal Data. (c) For purposes of the California Consumer Privacy Act (“CCPA”), Flou is a “Service Provider” as defined in the CCPA. Flou does not sell personal information (as defined in CCPA) contained in Your Data.
3.2. Protection of Customer Data. Flou will maintain appropriate technical and organizational safeguards for the protection of Your Data in accordance with the terms of its Privacy Policy and its obligations under Data Protection Laws. Flou may modify its Privacy Policy from time to time at its sole discretion. You acknowledge that you have read and understood the Privacy Policy. To the extent that Your Data is subject to EU Data Protection Laws or CCPA, You and Flou agree to sign a Data Processing Addendum (“DPA”) or a CCPA Addendum as applicable. You may request Flou’s DPA or a CCPA Addendum at info@theflou.com. If you execute a DPA or a CCPA Addendum, then the terms of such DPA or Addendum will be applicable and incorporated into this Agreement once executed by the Parties.
3.3. Aggregated and Anonymized Data. For the purpose of maintaining, providing, and improving the System, you hereby consent to Flou collecting, using, processing, or otherwise exploiting Aggregated and Anonymized Data (as defined below) at its sole discretion. For clarity, this Section 3.3 does not grant Flou the right to identify you as the source of any Aggregated and Anonymized Data.
4.1. Mutual Obligations of Confidentiality. Both Parties agree that all elements of Confidential Information are the property of the disclosing Party and shall remain the exclusive property of the disclosing Party. Each Party agrees to the following: (a) use the Confidential Information disclosed by the other Party only for the purposes described in this Agreement; (b) such Party will not use or disclose such Confidential Information to third parties, except as part of its performance under this Agreement; (c) restrict access to the Confidential Information disclosed by the other Party to those of its personnel, agents, and/or consultants who need to have access and who have agreed in writing to treat such information in accordance with the terms of this Agreement; and (d) to the extent possible, return or destroy all Confidential Information disclosed by the other Party.
4.2. Compelled Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent compelled by law to do so, provided that the Party making the disclosure pursuant to the order has first given written notice to the other Party and has made a reasonable effort to obtain a protective order.
4.3. Injunction. The Parties agree that a violation of this Section 4 would cause the disclosing Party irreparable harm, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the disclosing Party shall have the right to an injunction against such actual or threatened violation, without proving actual damages or posting a bond or other security.
Subject to the limited rights expressly granted under this Agreement, Flou and its licensors reserve all rights, title, and interest in and to the System, including without limitation all related Intellectual Property Rights and derivative works. You acknowledge that the System and its components are protected by the intellectual property laws of the United States and other countries, and all rights in the System not expressly granted to You under this Agreement are reserved.
6.1. By Flou. Flou warrants: (a) that it employs technical and organizational measures at a level not substantially less protective than as described on the Data Security page, and (b) that the System will function substantially in accordance with the documentation provided by Flou. For any breach of a foregoing warranty, your sole and exclusive remedies are described in Section 9.
6.2. By You. You warrant: (a) that if you are entering into this Agreement on behalf of a legal entity, you have the authority to bind such entity and its Affiliates to this Agreement; and (b) that your use of the System will comply in all material respects with Flou’s Intellectual Property, and with all applicable laws and regulations.
6.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SYSTEM IS PROVIDED “AS IS” AND AS AVAILABLE EXCLUDING ANY WARRANTY OF ANY KIND.
7.1. Indemnification by Flou. Flou agrees to defend, indemnify, and hold you harmless from any claim, action, and other proceedings (“Claim(s)”), and will pay the damages, attorney fees, and costs finally awarded (collectively, “Losses”) against You, to the extent arising from any Claim brought by a third party against You alleging that the System infringes or misappropriates a third party’s intellectual property right (a “PI Right”). If Flou receives information about an infringement or misappropriation claim related to the System, Flou may at Flou’s discretion and at no cost to You (i) modify the System so it no longer infringes; (ii) obtain a license for your continued use of the System; or (iii) terminate your subscription and refund any prepaid fees. The foregoing obligations of defense and indemnification do not apply if (1) the Claim arises from a modification of the System by someone not under Flou’s direction or control; (2) a Claim arises from the use or combination of the System with software, hardware, data, or processes not provided by Flou, if such use would not otherwise infringe; or (3) a Claim arises from your use of the System in violation of this Agreement.
7.2. Indemnification by You. Except for the Claims subject to indemnification by Flou as provided in Section 7.1, You will defend, indemnify, and hold Flou, its Affiliates, and Flou and its employees, directors, and officers, free from any Claim, and pay all Losses, to the extent arising or related to third-party Claims against Flou related to (a) your use or modification (including by anyone using logins, IDs, or passwords assigned to You) of the System (for example, Claims arising from use of the System for fraudulent purposes); (b) any content of yours (for example, Claims for infringement, violation of privacy rights, or breach of contractual obligations based on documents in the System); or (c) your failure to obtain the necessary consents from third parties.
7.3. Exclusive Remedy. This Section 7 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for any type of claim described in this Section 7.
7.4. Indemnification Process. The Parties’ indemnification obligations are conditioned on the indemnified party: (a) promptly providing written notice of the claim to the indemnifying party; (b) giving the indemnifying party exclusive control of the defense and settlement of the claim, except that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party from all liability; and (c) providing necessary information and reasonable assistance in connection with the claim, upon request and at the expense of the indemnifying party.
8.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE ABOVE SECTION 1.
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF USE OR BUSINESS INTERRUPTION, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING EXCLUSION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.1. For Any Reason. You may terminate this Agreement at any time without prior notice. You will remain responsible for any unpaid fees for the remainder of the Subscription Term or Renewal Subscription Term (as applicable).
9.2. For Cause. In the event of any breach of a material provision of this Agreement by a Party (“Breaching Party”), the other Party (“Non-Breaching Party”) may terminate this Agreement by providing thirty (30) days written notice to the Breaching Party specifying the material breach. Termination will be effective at the end of the notice period unless the Breaching Party cures the breach during the notice period. If You terminate the Agreement in accordance with this Section, Flou will refund any prepaid fees for the remainder of the current Subscription Term. If Flou terminates this Agreement in accordance with this section, You will pay any unpaid fees for the current Subscription Term remaining after the effective date of termination.
9.3. Effect of Termination. Upon termination of your Subscription Term: (a) all rights and licenses granted under this Agreement will immediately terminate; (b) the Parties will cease use and return or destroy all Confidential Information; and (c) the following provisions will survive the termination or expiration of this Agreement: (i) any obligation of yours to pay fees incurred before termination; (ii) Sections 4 (Confidentiality), 5 (Proprietary Rights), 6 (Representations and Warranties), 7 (Mutual Indemnification), 8 (Limitation of Liability), 10 (Miscellaneous), and 11 (Definitions); and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.
10.1. Relationship of the Parties. The Parties are independent contractors, and neither Party may commit the other.
10.2. Export Compliance. The System and any of its derivatives may be subject to U.S. export laws and regulations and those of other territories. Each Party represents that it is not named on any U.S. government denied-party list. You will not allow any authorized user to use the System in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
10.3. Force Majeure. No delay, failure, or default will be considered a breach of this Agreement to the extent caused by acts of war, terrorism, civil unrest, acts of God or nature, or other causes beyond the reasonable control of the executing party; however, lack of funds or inability to pay will not be considered as a reason beyond the reasonable control of a party.
10.4. Waiver. No failure or delay by any party in exercising any right under this Agreement will constitute a waiver of that right.
10.5. Governing Law and Jurisdiction. This Agreement will be governed solely by the laws of the State of Florida. Subject to the dispute resolution terms of this Agreement, the Parties consent to the personal and exclusive jurisdiction of the federal and state courts of the State of Florida.
10.6. Dispute Resolution. THE PARTIES AGREE TO USE THEIR BEST EFFORTS TO RESOLVE ANY DISPUTE DIRECTLY THROUGH CONSULTATION BETWEEN THEM BEFORE INITIATING ARBITRATION. ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), IN THE STATE OF FLORIDA, IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND WITH THE PARTIES EQUALLY SHARING THE COSTS OF ARBITRATION. YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT. IF YOU DO SO, NEITHER YOU NOR FLOU CAN REQUIRE THE OTHER TO PARTICIPATE IN AN ARBITRATION PROCEEDING. TO OPT OUT, SEND A WRITTEN NOTICE TO info@theflou.com WITH THE SUBJECT, “OPT-OUT OF ARBITRATION,” WITHIN 30 DAYS FOLLOWING THE EFFECTIVE DATE OF THIS AGREEMENT. IN THE OPT-OUT NOTICE, YOU MUST INCLUDE: (a) YOUR NAME AND THE EMAIL ADDRESS YOU USED FOR YOUR FLOU ACCOUNT, (b) IF THE ACCOUNT IS IN THE NAME OF AN ENTITY, THE NAME AND LEGAL ADDRESS OF THE ENTITY FOR WHICH YOUR ACCOUNT IS OPERATED, AND (c) A CLEAR STATEMENT THAT YOU CHOOSE TO OPT OUT OF THIS ARBITRATION AGREEMENT. A JUDGMENT ON THE ARBITRAL AWARD MAY BE ENTERED BY ANY COURT HAVING COMPETENT JURISDICTION. THIS AGREEMENT IS SUBJECT TO THE APPLICATION OF THE UNITED NATIONS CONVENTION OF 1958 ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS. NOTHING IN THIS SECTION SHALL BE DEEMED AS PREVENTING EITHER PARTY FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF THAT PARTY'S DATA SECURITY, INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.
10.7. Waiver of Class Action/Jury Trial. REGARDLESS OF WHETHER THE SYSTEM HAS BEEN USED FOR PERSONAL OR COMMERCIAL PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE INDIVIDUAL CAPACITY OF THE PARTIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, JOINT ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. THE PARTIES AGREE THAT BY ENTERING INTO THIS AGREEMENT, EACH PARTY IS WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, JOINT ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
10.8. Entire Agreement. This Agreement constitutes the entire agreement between the Parties. Except where expressly stated otherwise in writing executed between the Parties, the order of precedence shall be: (i) the Order; and (ii) this Agreement. This Agreement sets forth your exclusive remedies with respect to the System. If any provision of this Agreement is held to be invalid or unenforceable under law, it shall be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
10.9. Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the express written consent of the other party (which shall not be unreasonably withheld or delayed); however, either party may assign this Agreement and all Orders under this Agreement by written notice without the consent of the other party to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
10.10. Notices. Flou may send notices pursuant to this Agreement to your registered emails in the System. You may send notices related to this Agreement to info@theflou.com.
Affiliate means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. For this purpose, “control” means the possession of the power to direct the management, operations, and daily policies of any given person or entity.
Aggregated and Anonymized Data means (i) data generated by aggregating Your Data with other data so that the results cannot be personally identified with respect to You or other persons or companies you invited to documents in the System; and (ii) learnings, logs, and data on the use of the System.
APIs mean Flou's application programming interfaces, and their corresponding developer materials, including but not limited to software development kits, tools, libraries, scripts, and sample source code.
Confidential Information means information disclosed by one of the Parties to the other (a) in tangible form and marked as “Confidential” or with words of similar importance; (b) Your Data; (c) any technology incorporated into or used by the System; or (d) under circumstances by which the receiver should reasonably understand that such information should be treated as confidential, whether or not marked as "Confidential" or otherwise. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the possession of the receiver at the time of disclosure; (ii) is independently developed by the receiver without reference to the Confidential Information; (iii) becomes publicly known, before or after disclosure, other than as a result of the receiver’s improper action or inaction; or (iv) is approved for release in writing by the disclosing party.
Data Protection Laws means all applicable laws, regulations, and conventions related to data privacy and data transfer, including EU laws and the California Consumer Privacy Act (CCPA).
Downgrade means a reduction in the number of paid Seats on Your account, a change to a lower-value Subscription Plan, a change to a shorter Subscription Term, or the removal of additional features or functionalities in Your account.
Intellectual Property means all rights, title, and interest worldwide in copyrights (including derivative works), patents and inventions (patentable or not), trademarks, service marks, logos and designs, trade secrets, and all applications for registration or protection of such rights incorporated by or contained in the System and its documentation.
Order means Flou's order document or the selections made in the System by You indicating a Subscription Plan, the Subscription Term, the number of Seats selected for Your account, and the associated fees.
Privacy Policy means Flou's Privacy Policy available at www.theflou.com/legal-summary/privacy.
Seat means the right to access the System provided to each of Your authorized users. The technical features and capabilities available for each type of Seat are based on the Subscription Plan associated with Your account.
Subscription Plan means the plan that allows You and Your authorized users to register for an account to use the System. Subscription Plans provide parameters for included features, allowed number of Seats, API calls, System actions, and other usage parameters.
Subscription Term means the designated period in the Order or any subsequent renewal during which You are entitled to use the System.
System means the online contract creation and management system hosted by Flou. The System includes, without limitation, Flou's proprietary software and technologies, including any APIs, enhancements, modifications, and derivative works.
Taxes mean taxes, duties, or other governmental assessments of any nature, including, for example, value-added, sales, use, goods and services, or withholding, assessable by any jurisdiction.
Trial means a time-limited free access to one of the paid Subscription Plans.
Upgrade means a change to a higher-value Subscription Plan, an increase in the number of paid Seats, a change to a longer Subscription Term, or the addition of features and functionalities in Your account.
You means the individual or entity that registered for an account in the System. For clarity, You includes the client's authorized users and any Affiliate. You must be at least 21 years old to access the System.
Your Data means electronic data, information, or material not provided by Flou that You import into the System or transmit through your account in the System, including from individuals or business entities you have invited to documents in the System.