Flowglad Terms of Service

THIS SAAS SERVICE AGREEMENT (the “Agreement”), dated effective as of the date Customer submits this form by clicking the “Create Account” box provided through this website, which click you acknowledge constitutes a signature (the “Effective Date”) is by and between Flowglad Inc, a Delaware corporation, (“Flowglad”), and the person or entity that accepts this Agreement and accesses or uses the Flowglad Service (“Customer”).

THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT OUT.

Flowglad has developed certain Software, as defined below, which Customer desires to use for its business purposes. Customer will be provided access to and use of the Software as part of the web-based Flowglad Service.

In consideration of the mutual covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, Customer and Flowglad agree as follows:

1. Definitions

1.1 “Account” means each individual Customer account in the Flowglad Service system that is associated with Customer’s use of the Flowglad Service.

1.2 “Activation Date” means the later of the date this Agreement is executed by Customer and accepted by Flowglad.

1.3 “Administrative User” means Customer’s primary contact person with Flowglad, who has full access to the Flowglad Service and has the right and ability to control access for all other Authorized Users (i.e., can grant or restrict Flowglad Service access for other Authorized Users).

1.4 “Authorized User(s)” means any person that Customer allows to have access to the Flowglad Service and Customer’s account, including Customer’s employees and staff and any third parties that Customer allows to view or use the Flowglad Service.

1.5 “Confidential Information” means all proprietary and confidential information exchanged by the parties or to which access is provided by one party to the other, including the Software; trade secrets; the substantive terms of this Agreement; a party’s non-public business, strategic and financial information; any plans, programs or forecasts; intellectual property; Customer Data; Third-Party Software and other third-party confidential information that is disclosed by one party to the other, any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may also disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to such disclosure.

1.6 “Customer Data” means all information and data input by Customer or its Authorized Users into the Flowglad Service, including all usernames, passwords, and other data provided by Customer and its Authorized Users. However, Customer Data does not include the Usage Data relating to Customer’s and its Users’ use of the Flowglad Service.

1.7 “Flowglad Service” means a web-based, hosted SaaS service. The Flowglad Service is hosted on servers of Flowglad or its agents, through which Customer is provided access to the Software via the Internet. The Flowglad Service may include any Third-Party Software that is embedded within the Flowglad Service or is made available to Customer under the terms of this Agreement, but excludes Third-Party Software that is licensed or provided to Customer under a separate license or agreement.

1.8 “Prohibited Products” means the products listed on Appendix A hereto.

1.9 “Software” means the hosted computer software that Customer is granted the right to access and use as part of the Flowglad Service, including all systems, modules, web pages, websites, databases, software code, technology, etc., provided by Flowglad. “Software” includes all modifications, and all documentation and updates thereof.

1.10 “Third-Party Software” means any software or technology (including open source software) that is not part of the Flowglad family of products.

2. Access to Flowglad Service and Software

2.1 Flowglad Service. Flowglad grants Customer the non-exclusive and non-transferable right and license to access and use the Flowglad Service, including the Software, during the term of this Agreement, subject to the terms and conditions of this Agreement. Flowglad will make the Flowglad Service available for Customer and its Authorized Users to access during the term of this Agreement, subject to the terms and limitations set forth herein. The Flowglad Service may be hosted on Flowglad’s servers or, at Flowglad’s option, on the servers of a third party that is in the business of hosting web-based applications.

2.2 Access and URL. During the term of this Agreement, from and after the Activation Date and completion of initial configuration of the Flowglad Service for Customer, and provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer and its Authorized Users will be able to access the Flowglad Service and use the Software. Flowglad may provide a URL for a website for use by Customer in the form of a sub-domain of Flowglad’s registered URL as chosen by Flowglad. If Customer chooses to sub-mask or forward a different URL to the URL provided by Flowglad, then Customer is solely responsible to independently purchase, retain ownership of and uphold terms and conditions of such URL.

2.3 Authorized Users. Authorized Users are granted a nonexclusive, non-transferable right to access and use the Flowglad Service for the sole benefit of Customer, subject to the terms of Flowglad’s End User Terms of Service, the current version of which is attached as Exhibit 1. Each Authorized User must accept the End User Terms of Service prior to accessing the Flowglad Service. The End User Terms of Service may be modified from time to time in Flowglad’s discretion; updated versions shall be effective upon notice to Authorized Users. Flowglad’s commitments, representations, and indemnities set forth in this Agreement apply only to Customer itself.

2.4 Restrictions. Customer and its Authorized Users will comply with the following restrictions and limitations: (a) not market, advertise, offer for sale, or sell any of the Prohibited Products in connection with use of the Flowglad Service and the Software; (b) not copy or modify the content on the Flowglad websites (other than Customer Data supplied by Customer), or any other materials or other proprietary documents provided by Flowglad; (c) not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Software; (d) not sublicense, distribute or sell the Flowglad Service or Software or Customer’s rights thereto, or allow any third parties to use or access the Flowglad Service or Software; and (e) take all reasonable precautions to prevent Customer’s employees and consultants from making unauthorized copies of the Software, or other Flowglad materials or intellectual property, or misusing the Flowglad Service or such Flowglad materials or intellectual property in any way that would constitute a breach of this Agreement. For clarity, Customer and its Authorized Users are restricted to using the Flowglad Service and Software to service the provision of its own websites to the consuming public, and offer for sale, and sale, its own proprietary products through the website.

If Customer discovers any breaches of this Agreement by it or breach of the End User Terms of Service by its Authorized Users, it will promptly notify Flowglad and take commercially reasonable actions to resolve the problem, including any actions reasonably requested by Flowglad, as soon as reasonably possible. Flowglad reserves the right to audit Customer’s use of the Flowglad Service, upon twenty-four (24) hours’ prior written notice to Customer, to confirm that Customer’s use of the Flowglad Service is in compliance with the terms of this Agreement. Customer acknowledges the Flowglad may also monitor the Flowglad Service and Customer’s use thereof on Flowglad’s systems.

2.5 Administrative User. Customer will designate one Authorized User to be its Administrative Userand may designate up to two additional Authorized Users as backup Administrative Users. An authorized representative of Customer will notify Flowglad of the name and contact information for the Administrative Users, and any changes to the persons designated as primary or backup Administrative Users. The Administrative User is given administrative access to Customer’s account on the Flowglad Service and is responsible for granting or restricting Flowglad Service access for other Authorized Users. The Administrative User is also the primary contact person for Customer with Flowglad or its agents, and such person’s instructions and requests to Flowglad or its agents will have priority over the instructions or requests of any other employee or representative of Customer.

2.6 Business Opportunities for Customer. Flowglad may from time to time notify Customer of services, products, or other business opportunities arising out of Flowglad’s business, including its dealings with other customers and vendors of Flowglad. In each case Customer will have the right to elect whether or not to participate in such transaction or to receive additional information, on an “opt-in” basis.

2.7 Third-Party Software. Any open source components of the Flowglad Service are subject to the applicable third-party open source license terms; Flowglad will use reasonable efforts to make such terms available upon request. Other Third-Party Software that is embedded in the Flowglad Service Software, or is provided by Flowglad as an integrated part of the Flowglad Service, is provided by Flowglad to Customer pursuant to the applicable terms of this Agreement, unless a separate third-party license or agreement for such Third-Party Software is provided or applicable to Customer. Third-Party Software is authorized only for use in connection with the Flowglad Service, unless otherwise permitted under an open source license.

2.8. Payment Processing. Customer’s relationship with any payment processor or payment provider is solely between Customer and the payment processor and is governed by the payment processor’s terms. Flowglad is not a payment processor, money transmitter, and does not receive, hold, or transmit Customer funds (other than fees payable to Flowglad). Customer is solely responsible for (i) all payment processing, settlement and payout configuration, (ii) chargebacks, reversals, refunds, disputes, and customer support relating to payments, and (iii) compliance with applicable law and payment processor/card network rules.

3. Ownership

3.1 Flowglad Ownership. Flowglad and/or its licensors retain all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the Flowglad Service, including the Software, documentation and all content provided by Flowglad as part of the Flowglad Service, including any customized software or other derivative works, subject to the grants of rights and licenses set forth in this Agreement. Flowglad also owns all right, title and interest in and to (i) the usage data relating to its customers’ use of the Flowglad Service (“Usage Data”), and (ii) the results or information provided by third party vendors in response to actions or queries of customers (excluding any Customer Data that is contained within the vendor’s response). Flowglad specifically reserves all rights not expressly granted to Customer in this Agreement.

3.2 Customer Data. Customer owns and shall retain all right, title and interest in and to Customer Data, subject to Flowglad’s rights as set forth below. Flowglad will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Customer Data. Customer grants Flowglad the right to use, reproduce, modify and distribute Customer Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Customer Data, create and distribute reports, and to provide, modify and improve the Flowglad Service and Software. Customer authorizes Flowglad to transmit Customer Data to, and retrieve data from, third-parties as necessary to provide the Flowglad Service. Flowglad is not responsible for third-party services and does not control their performance, availability, or decisions. To the extent permitted by applicable law, Customer also grants Flowglad the right to share Customer Data with third parties in connection with Flowglad’s general activities of conducting business, including providing Customer with possible solutions to their business needs, and developing and providing third party integrations with the Software (pulling credit, data decoding, data lookup, automated telephone calls, merchant services, etc.).

3.3 Usage Data and De-Identified Data. Flowglad has the right to monitor Customer’s and its Authorized Users’ use of the Flowglad Service to obtain Usage Data, including usage patterns (e.g., levels of use based upon days of the week and times), and level of usage for different functions of the Flowglad Service as examples. Flowglad also has the right to collect, aggregate and remove all personally identifiable information from Customer Data, and to retain, use and disclose such de-identified data (the “De-Identified Data”) for any purpose permitted by law, including without limitation benchmarking, product and service development, development of best practices, making it available to third parties, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Customer. Flowglad shall own all De-Identified Data, including any calculations, functions, features, or other modifications of the Customer Data, excluding the Customer Data in its raw form.

3.4 Feedback and Suggestions. If Customer or its Authorized Users provide any suggestions, ideas or feedback to Flowglad (“Feedback”), Flowglad shall have a royalty-free, worldwide, irrevocable, perpetual license to use such Feedback and incorporate it into or use it to improve Flowglad’s software, products and services. Flowglad shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered by Flowglad to Customer in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the rights granted herein to Customer.

4. Suppliers. Suppliers are subject to the Supplier Terms and Conditions.

5. Customer Obligations

5.1 Obligations. Customer will: (a) be responsible for its and its Authorized Users’ compliance with this Agreement and the End User Terms of Service; (b) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired such data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Flowglad Service, and notify Flowglad promptly of any such unauthorized access or use; (d) use the Flowglad Service only in accordance with its documentation (as available) and/or its intended purpose; (e) not make the Flowglad Service available to anyone other than Authorized Users; (f) not use the Flowglad Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) not use the Flowglad Service to store or transmit any virus, Trojan,worm, or other malicious or harmful computer software code or routines; (h) not interfere with or disrupt the integrity or performance of the Flowglad Service or third party data contained therein; (i) not attempt to gain unauthorized access to the Flowglad Service or its related systems, networks, or other user data; (j) not engage in copying, scraping, or reverse engineering of the Software or any aspect of the Flowglad Service; (k) not use the Flowglad Service for spamming, phishing, pharming, or for any obscene or immoral purpose; (l) not use the Flowglad Service to interfere with or circumvent the security features of the Flowglad Service; (m) in the event of a dispute, not engage in any conduct or communication, public or private, that disparages Flowglad or any of its products or services (other than within legal proceedings); and, (n) conduct itself, and require that its employees conduct themselves, in a professional manner during interactions with all Flowglad personnel.

5.2 Usage Limitations. The Flowglad Service may be subject to other usage limitations, such as, for example, limits on storage space, on the number of calls Customer are permitted to make against an API (application programming interface), and, for any portion of the Flowglad Service that enables Customer to provide Hosted Websites, on the number of page views by visitors to those websites, or the size of the hosted content.

5.3 Customer Security Requirements. Customer is solely responsible for the security of data residing on server(s) owned or operated by Customer or a third party designated by Customer (e.g., a web hosting company, processor, or other service provider), including being responsible for the security of all data residing outside of the Flowglad Service, as well as keeping confidential all usernames and passwords of Authorized Users in order to avoid unauthorized access to the Flowglad Service.

5.4 Flowglad Security Requirements. Flowglad will use commercially reasonable, industry-standard methods to safeguard the security of the Flowglad Service, including processes of encryption of data, incident management policies, data backup policies and other procedures to ensure both the safety and security of the Customer Data residing in the Flowglad Service. In compliance with PCI-DSS, Flowglad is responsible for the security of cardholder data that resides on the Flowglad Service. This includes securing cardholder data that is stored, processed, or transmitted on behalf of the Customer, to ensure the security of cardholder data and its environment. Flowglad is not responsible for the security of cardholder data that is not stored, processed, or transmitted by Flowglad.

6. Terms of Payment

6.1 Fees & Costs. All pricing and transactions between Flowglad and Customer will be in U.S. Dollars, at the rates outlined on Flowglad’s pricing page. Customer is responsible for any and all fees incurred. All fees are charged at the time of purchase, usage, or approval of charge, as applicable to that particular type of fee. All fees are non-refundable unless otherwise expressly stated in this Agreement. In the event of a conflict between the pricing page and any other terms in this Agreement, the terms of the pricing page shall control.

The fees on Flowglad’s pricing page. and set forth below will apply for the Initial Term:

6.1.1 Transactions Fees. These are fees based on completed transactions performed in or through the Flowglad Service, as listed on Flowglad’s pricing page.

6.1.2 Email Fees. These are fees based on optional use of the email contact feature, as listed on Flowglad’s pricing page.

6.1.3 New Features. Flowglad may add services or features to the Flowglad Service that will be available to Customer on an optional basis and may be subject to an additional fee. Fees for these new features or services will be specified in each case,.

6.2 Pricing Changes.  All fees and other amounts payable in connection with the Flowglad Services, including but not limited to the Transaction Fees and other usage fees, are subject to change at any time in Flowglad’s sole discretion. Flowglad will post any material changes to applicable fees on the pricing page on the Flowglad website, and any such changes will apply prospectively upon posting or as of the effective date specified in such notice.

6.3 Remedies for Nonpayment. If Customer’s account is more than 10 days past due and the overdue amounts have not been paid within ten (10) days after receipt of written notice of such breach (including by an on-screen non-payment notification to Customer within the Flowglad Service), Flowglad has the option and right to require payment on the account by partially or fully suspending and blocking Customer’s and its Authorized Users’ access to the Flowglad Service until all past-due amounts are paid. Customer’s account may be assessed additional fees for blocking or unblocking the account due to late payment, and Customer hereby consents to this collection practice. This express statement of remedy is not a waiver of any other remedies available the Flowglad in law or equity.

6.4 Taxes. Customer is responsible for all applicable taxes on the fees paid by Customer to Flowglad, including, without limitation, any and all sales, use, and value-added taxes, (excluding taxes on Flowglad’s net income).Customer is solely responsible for any sales/use taxes, even if not collected by Flowglad. To the extent required by governing law, Flowglad will invoice Customer for any sales or use taxes applicable to the Flowglad Service and remit such amounts to the applicable governmental authorities. If Customer is a tax-exempt entity, Customer will provide a tax-exemption certificate to Flowglad.

7. Confidential Information

7.1 General Confidentiality Obligations. The party receiving Confidential Information will not disclose it to any person or use it for any purpose, except as expressly permitted by this Agreement. The receiving party may disclose Confidential Information only to its employees, representatives and contractors who need to know such information and who are bound to keep such information confidential. The receiving party will give Confidential Information at least the same level of protection as it gives its own confidential information of similar nature or sensitivity, but not less than a reasonable level of protection. The receiving party will maintain Confidential Information in a safe and secure place and will not copy such information, except to the extent reasonably necessary for the purposes of this Agreement.

7.2 Personal Data and Privacy. Flowglad agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including personal information and personal data of Users and other individuals (“Personal Data”). Flowglad will not disclose or use Personal Data except (i) as set forth in this Agreement or the then-current Privacy Policy on Flowglad’s website, (ii) as compelled by law, (iii) as expressly permitted or instructed by Customer, or (iv) as reasonably necessary in order to provide the Flowglad Service and other services in connection with this Agreement. Flowglad shall require its employees and contractors to be subject to confidentiality undertakings with respect to Customer Data, including Personal Data.

8. Warranties and Limitations of Liabilities

8.1 Customer Warranties. Customer represents and warrants that: (a) Customer has the necessary right, power and authority to execute this Agreement and to perform Customer’s obligations herein; (b) no authorization or approval from any third party is required in connection with Customer’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (d) Customer’s obligations under this Agreement do not violate any law or breach any other agreement to which Customer is bound; (e) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer’s behalf, are true, accurate and complete in all material respects; (f) Customer is engaged in a lawful business that includes the sale of products and/or services, and Customer has such permits and licenses as are required to conduct its business under the laws of all applicable jurisdictions in which Customer conducts such business; and (g) Customer will comply, at its sole expense, with all federal, state and local laws, policies, guidelines, regulations, ordinances or rules applicable to Customer in connection with this Agreement and its use of the Flowglad Service.

8.2 Flowglad Warranties. Flowglad represents and warrants that: (a) Flowglad has the necessary right, power and authority to execute this Agreement, to grant the rights and licenses herein granted to Customer, and to perform Flowglad’s obligations herein; (b) no authorization or approval from any third party is required in connection with Flowglad’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Flowglad, enforceable against Flowglad in accordance with its terms; and  (d) From and after the Activation Date, Flowglad will use commercially reasonable efforts to provide Customer with access the Flowglad Service excluding downtime (i) scheduled in advance for maintenance on a periodic basis, (ii) due to unscheduled emergency maintenance, (iii) due to faults caused by Customer or Customer’s system, or (iv) due to other causes outside of the reasonable control of Flowglad, including without limitation malfunction or cessation of Internet services by any third party network or ISP or service interruptions caused by the third party cloud storage service. To the extent reasonably feasible, Flowglad will provide Customer reasonable advance notice for emergency maintenance or Software performance interference issues, which will be published on the Flowglad Service’s status page. Flowglad’s warranty under Section 8.2(d) is conditional upon Customer having in place, at a minimum, Flowglad’s then-current recommended infrastructure configurations.

8.3 Limitation of Warranties; Disclaimers. Flowglad does not warrant or guarantee that the Flowglad Service will be uninterrupted, error-free, or free from any potential or actual security threats. The Flowglad Service and Software, and other services of Flowglad, are provided to Customer and its Authorized Users on an “AS IS” and “AS AVAILABLE” basis. FLOWGLAD AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS OF THE FLOWGLAD SERVICE FOR ANY PARTICULAR PURPOSE OR INTENDED USE. FLOWGLAD MAKES NO WARRANTIES WHATSOEVER AND IS NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY CUSTOMER AS A RESULT OF USING ANY THIRD-PARTY SERVICE OR SOFTWARE, EVEN IF LINKED TO OR INTEGRATED IN THE FLOWGLAD SERVICE. Flowglad is not responsible or liable for damage, malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond Flowglad’s exclusive control. No employee of Flowglad or any third party has the right to make any representation or warranty regarding the Flowglad Service, except as expressly set forth in this Agreement.

Without limiting the foregoing, and except as otherwise expressly set forth in this Agreement, Flowglad does not make any representation, warranty or guarantee as to the results that may be obtained from Customer’s use of the Flowglad Service or as to the accuracy or reliability of any information therein, or with respect to any third party product or service, whether integrated with the Flowglad Service or not, or recommendations or information offered by any Flowglad personnel or third parties. Customer expressly acknowledges and agrees that Customer’s use of the Flowglad Service does not in any way guarantee the security or reliability of Customer’s website. Customer understands and agrees that Flowglad shall bear no risk with respect to Customer’s sale, products or services, including any risk associated with the security of Customer’s website, credit card fraud or chargebacks, or any risk associated with Customer’s failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business, including charging interest or finance charges, or any other regulatory or legal requirements. Flowglad is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Customer.

Customer expressly agrees that Flowglad shall not be liable for any loss or damages whatsoever arising from or caused by (i) Customer’s failure to properly activate, integrate, use or manage the Flowglad Service; (ii) any fraudulent transactions; (iii) disruption of the Flowglad Service attributable to a Force Majeure event; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems, or any products or services with which the Flowglad Service is integrated; (v) any person’s unauthorized access to Customer Data (including credit card number and other personally identifiable information), transaction data or personal information, except if such access is due solely to Flowglad’s grossly negligent or willful misconduct; or (vi) Third-Party Software that is not embedded within the Flowglad Service.

8.4 Limitations of Liability. IN NO EVENT WILL FLOWGLAD, ITS AFFILIATES OR LICENSORS BE LIABLE FOR LOST DATA, LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FURNISHING, PERFORMANCE, OR USE OF ANY SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. FLOWGLAD’S AND ITS AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM(S), INCLUDING INDEMNIFICATION, WILL NOT IN ANY EVENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; PROVIDED, HOWEVER, THAT IN THE CASE OF A CLAIM RELATING TO ANY SERVICES FOR WHICH A SEPARATE ONE-TIME FEE WAS CHARGED, THE CAP ON LIABILITY SHALL BE THE AMOUNT OF SUCH FEE. This limitation shall apply whether or not the alleged breach by Flowglad is a breach of a fundamental condition or fundamental term.

8.5 Legal Compliance; Use of Flowglad Forms. Customer acknowledges that Flowglad’s personnel are not financial experts, attorneys, accountants or experts on the applicable laws of any state or jurisdiction. Flowglad personnel may consult with Customer’s Authorized Users and provide assistance and recommendations, but Customer is solely responsible for compliance with any applicable laws, regulations and professional standards by Customer and its Authorized Users. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Customer. THE FINAL DECISION ABOUT ANY ASPECT OF CUSTOMER’S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH CUSTOMER’S USE OF THE Flowglad SERVICE, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF CUSTOMER.

9. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

If you have a complaint, dispute, or controversy, you agree to first contact us at hello@flowglad.com to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Flowglad Service, this Agreement, or your relationship with us that cannot be resolved through such informal process shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”), and judgment on the award rendered may be entered in any court having jurisdiction thereof. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of this Agreement, this arbitration provision, and any other terms incorporated by reference into this Agreement. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. 

Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses. The arbitrator shall follow the substantive law of the State of Delaware without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1‐16, as amended. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

You and we agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and we expressly waive any right to pursue any class or other representative action against each other. Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises. 

This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1‐16, as amended. This provision survives termination of this Agreement or relationship with us, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION. YOU HAVE THE RIGHT TO OPT‐OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU ENTER THIS AGREEMENT OR USE THE FLOWGLAD SERVICE (WHICHEVER COMES FIRST) BY WRITING TO US AT HELLO@FLOWGLAD.COM

10. Indemnification

10.1 By Flowglad. Flowglad will defend Customer against any and all third party claims or suits (each a “Claim”) that the Flowglad Service infringes any third party U.S. patent that has issued as of the Effective Date, copyright or trademark, or misappropriates any trade secret, and Flowglad will pay any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded in connection with such Claim or paid in settlement. If the Flowglad Service is finally held or reasonably believed by Flowglad to infringe, Flowglad shall use reasonable efforts to obtain a license under the rights that have been infringed, to modify the Flowglad Service so it is non infringing or to provide to Customer a substitute service and/or software that is noninfringing; provided that if such options are not commercially reasonable, Flowglad may terminate the applicable Flowglad Service or this Agreement upon written notice to Customer, in which event Flowglad shall refund to Customer all prepaid fees paid for any period after termination of this Agreement, as well as any period prior to termination during which Customer was prevented from accessing the Flowglad Service. Flowglad shall have no liability for infringement claims arising out of or related to any Third-Party Software, or arising out of modification of the Flowglad Service by any party other than Flowglad or the combination or use of the Flowglad Service with any software, equipment, product or process not furnished by Flowglad, or arising out of any unauthorized use of the Flowglad Service by Customer, if use of the Flowglad Service alone, as authorized, and in its current, unmodified form would not have been an infringement. THIS SECTION STATES FLOWGLAD’S AND ITS LICENSORS’ ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

10.2 By Customer. If any action is instituted by a third party against Flowglad (a) arising out of or relating to Customer’s use of the Flowglad Service, including without limitation (i) any breach or alleged breach by Customer of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any breach of any applicable law or regulation governing or otherwise applicable to Customer’s industry, business, or operations; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or its employees, or agents; or (iv) any claims associated with the provision of services by Customer; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Flowglad and shall pay all damages attributable to such claim which are finally awarded against Flowglad or paid in settlement of such claim.

10.3 Indemnification Procedure. Any party that is seeking to be indemnified under this Section 10 (an “Indemnified Party”) for a third party Claim must (i) promptly notify the other party (the “Indemnifying Party”) of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 10 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense. The Indemnified Party may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing.

11. Term and Termination

11.1 Term. There is no set term or automatic expiration. The Flowglad Service and this Agreement remains active until cancelled.

11.2 Cancellation without Cause. Flowglad and Customer may cancel the Flowglad Service or this Agreement at any time with or without cause.

11.3 Termination for Cause. Flowglad may terminate this Agreement at any time if Customer party commits a material breach of this Agreement and does not cure such breach within fifteen (15) days of written notice specifying the nature of such breach (except for breaches by a party of its confidentiality obligations or payment obligations, for which the cure period will be five (5) business days after receipt of written notice of such breach, including by an on-screen non-payment notification to Customer within the Flowglad Service). A confidentiality breach is deemed cured, for purposes of this Section 11.3, if the Customer (i) mitigates the damages resulting from the breach to the extent reasonably feasible; and (ii) takes reasonable steps, such as modifying its internal policies and practices, to prevent such a breach from reoccurring. Notwithstanding the foregoing, Flowglad may, in its reasonable business judgment, determine that a confidentiality breach was sufficiently material that it wishes to terminate this Agreement without permitting a cure, in which case the Flowglad shall so notify Customer and this Agreement shall terminate at the end of the five (5) day notice period. Flowglad may also terminate or suspend Customer’s account and this Agreement immediately, without prior notice, if Flowglad reasonably determines that Customer is conducting an illegal business or if Flowglad is instructed to terminate or suspend Customer’s account by federal or state regulatory authorities. 

11.4 Effect of Termination. In the event of termination of this Agreement for any reason, Customer shall immediately cease using the Flowglad Service. After termination of this Agreement, Customer will not have any access to the Flowglad Service or the Customer Data stored therein; it is Customer’s sole responsibility to copy or remove such Customer Data from the Flowglad Service prior to termination. After termination, Flowglad has no obligation whatsoever to maintain or store Customer Data and Flowglad will promptly delete or remove Customer Data from its system. Flowglad reserves the right to store the Customer Data after termination to comply with applicable laws and regulations. Each party shall promptly return to the other party or destroy all Confidential Information of the other party, and upon request of the other party will certify such return or destruction, provided that if retention of any Confidential Information is required by law or practice, then such retained Confidential Information shall be described in the applicable certification and remain subject to the terms of this Agreement. Customer shall pay all accrued charges and fees within thirty (30) days of the date of termination. All provisions, rights, or obligations that by their nature are intended to survive (including, without limitation, provisions relating to fees and payment obligations, refunds and chargebacks, taxes, intellectual property, confidentiality, limitations of liability, and indemnities) will survive any expiration or termination of this Agreement.

12. Miscellaneous

12.1 Assignment. Customer will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights granted herein to any third party (other than designating Authorized Users), without Flowglad’s prior written consent. Flowglad’s consent to an assignment of this Agreement by Customer is subject to Flowglad’s review and approval of the proposed assignee. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, each Party’s respective successors and permitted assigns.

12.2 Governing Law. This Agreement shall be governed by the laws of State of Delaware (excluding conflicts of laws provisions). The parties submit to the exclusive jurisdiction and venue of Delaware courts with respect to any action between the parties relating to this Agreement. The prevailing party in any action shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.

12.3 Injunctive Relief. Customer acknowledges that the Flowglad Service and other Confidential Information are highly valuable to Flowglad and its licensors, and that money damages would not be a sufficient remedy for any breach of Customer’s obligations herein with respect to confidentiality or misuse of Flowglad’s or its licensors’ proprietary materials and information. Therefore, in the event of any breach by Customer of its obligations with respect to the scope of its rights or its confidentiality obligations, Flowglad or its licensors shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security, to the extent permitted by law.

12.4 Publicity. Neither party shall release or use the other party’s name, logo, trademark or other intellectual property, or reference this Agreement in any manner, except as specified in accordance with this Agreement, without the prior written consent of the other party; provided, that the foregoing shall not apply with respect to a party’s sales, marketing, investor, regulatory and similar non-public materials and discussions. Notwithstanding the foregoing, (i) Flowglad is permitted to include Customer’s name and/or logo on customer lists on Flowglad’s website and in other marketing materials; and (ii) if requested by Flowglad, the parties will cooperate in good faith to issue a press release that acknowledges the partnership between the Parties within 60 days of the Effective Date.

12.5 Severability. In the event that any of the terms or provisions herein are determined by a court of competent jurisdiction to be unenforceable or invalid for any reason whatsoever, such terms shall be severed, and the enforceability or validity of the remaining terms shall not be affected thereby.

12.6 Entire Agreement; Amendment; Waiver. This Agreement, including the addenda and exhibits attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on Flowglad and shall not apply to this Agreement unless mutually executed by Customer and Flowglad. Except as otherwise specifically set forth herein, this Agreement may be amended only by a written document signed by authorized representatives of both parties. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.

12.7 Notices. All notices or other communications required under to this Agreement to Flowglad shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party set forth below or such other address a party may specify by written notice. Notwithstanding the foregoing, notices from Customer to Flowglad regarding changes to or termination of Customer’s use of the Flowglad Service may also be sent to the email address hello@flowglad.com

Flowglad Contact Information:

hello@flowglad.com

Flowglad
169 Madison Ave STE 11846
New York, NY 10016 United States

All notices to Customer shall be delivered through Flowglad’s internal communication portal, or otherwise via email to the email address provided by Customer upon entering this Agreement or as updated by Supplier.

12.8 Force Majeure. Flowglad shall be excused from delays or failure to perform the Flowglad Service or other services pursuant to this Agreement to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, pandemics, epidemics, labor disputes, or any other causes beyond its reasonable control (each a “Force Majeure” event). In the event of a delay in implementation and related services or other failure to perform obligations due to any Force Majeure event, the date or dates of performance of such services or obligations shall be extended for a period equal to the time lost by reason of the delay. If a party’s performance is affected by an event of Force Majeure, including Customer’s payment obligation, it will promptly inform the other party and will use commercially reasonable efforts to fulfill its obligations under this Agreement and to remove or avoid any disability and mitigate any damages caused by such event of Force Majeure at the earliest time and to the greatest extent as is reasonably feasible.

12.9 Independent Contractors. The parties are independent contractors, and this Agreement shall not be construed to create any agency, fiduciary relationship, franchise, or partnership between them. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.

12.10 Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. This Agreement shall become effective when one or more counterparts have been signed by the parties hereto and delivered to the other parties, it being understood that the parties need not sign the same counterpart.

12.11 Electronic Signatures. Each party agrees that if it or any other party clicks for acceptance, draws, types or attaches its signature or any other text, symbol or image in a box or space associated with any Agreement or terms and conditions, such party is agreeing to be legally bound by such terms and conditions. The parties agree that such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature.

Appendix A – Prohibits Products/Services

The following products and services are prohibited and may not be offered or sold through or in connection with the Flowglad Services:

• Products or content for which you do not hold proper license or intellectual property rights.

• Counterfeit goods.

• Any products restricted by our payment processing partners.

• Illegal or age restricted products such as: drugs and paraphernalia, alcohol, tobacco, vaping products, sexually-oriented or pornographic content.

• Regulated products such as: CBD, gambling, weapons, ammunition, pay to play auctions, sweepstakes, lotteries, donations, business-in-a-box, work-from-home, get-rich-quick schemes, etc.

• Regulated services such as: real estate, mortgage, lending, telemarketing, cellular/communication, door-to-door sales, bankruptcy, legal, merchant, debt-relief, collections, banking/financing, currency exchange, warranties, etc.

• Timeshares.

• Pharmacies, pharmaceuticals and nutriceuticals.

• Homework/Essay mills.

• Multi-level marketing, pyramid, or IBO schemes,

The current list of prohibited products and services is available on the Flowglad Website and is incorporated into this Agreement by reference, as updated by Flowglad from time to time. Flowglad may modify this list at any time, and any changes will be effective upon posting to the Flowglad Website. Customer is responsible for reviewing the then-current list on a regular basis. .

Exhibit 1

End User Terms of Service

PLEASE READ THESE TERMS OF SERVICE (THE “TERMS”) CAREFULLY BEFORE ACCEPTING THESE TERMS, UNDER WHICH YOU WILL BE AUTHORIZED TO USE THE FLOWGLAD SERVICE PROVIDED BY FLOWGLAD INC, A DELAWARE CORPORATION (“FLOWGLAD”). BY CLICKING “I ACCEPT” OR BY USING THE FLOWGLAD SERVICE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY. THESE TERMS SET FORTH YOUR LEGAL RIGHTS AND OBLIGATIONS RELATED TO THE FLOWGLAD SERVICE. IF YOU DO NOT ACCEPT THESE TERMS, CLICK “I DO NOT ACCEPT” BELOW.

These Terms are a legal agreement between you and Flowglad and govern your use of the Flowglad Service as an authorized user of a customer of Flowglad (the “Customer”), which has signed a separate agreement with Flowglad. Flowglad makes its software service (the “Flowglad Service”), including the related software (the “Software”) available to its customers and their authorized users. The Flowglad Service is accessible through Flowglad’s designated website and web portal (the “Website”), subject to the following terms and conditions. Any rights not expressly granted herein are reserved by Flowglad.

Changes to Terms: Flowglad may update these Terms from time to time. You may be notified of such changes by email and/or Flowglad may require you to accept the new version of the Terms in order to continue accessing the Flowglad Service. If you object to any changes in these Terms, you may discontinue your use of the Flowglad Service.

In consideration of Flowglad’s provision of the Flowglad Service and related services to you, you agree with Flowglad as follows:

1. ACCESS TO Flowglad SERVICE SOFTWARE AND MATERIALS. You will have access to the Software and materials made available in the Flowglad Service by Flowglad. You acknowledge and agree that the Flowglad Service, Website, Software, and other materials that may be made available as part of the Flowglad Service may be modified and updated from time to time, in Flowglad’s sole discretion. Flowglad does not make any commitment to you that it will maintain particular functions, features or materials as part of the Flowglad Service.

2. ACCEPTABLE USE TERMS. As a condition of your use of the Flowglad Service (including the Website and Software), you warrant to Flowglad that you will use the Flowglad Service solely for the Customer’s business purposes, and you will not use the Flowglad Service or Flowglad materials for any purpose that is unlawful or that is prohibited by these Terms. Without limiting this warranty, you specifically agree: (a) You will not use the Flowglad Service in any manner which could damage, disable, overburden, or impair the Flowglad Service or interfere with any other person’s or customer’s use and enjoyment of the Flowglad Service. (b) You will not obtain or attempt to obtain any materials or information on or through the Flowglad Service through circumventing any access or use restrictions or by any other unauthorized methods, such as hacking or password mining. (c) You may not use any bots, spiders, page-scraping or other automated or manual processes or methods to copy or monitor this Flowglad Service or any of its contents. (d) Any content or data you upload or input in the Flowglad Service will not contain any obscene, immoral, libelous or unlawful material or any materials or instructions that may cause harm or injury, and will not violate any person’s right of privacy or any copyright, trademark, or other intellectual property rights. (e) You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any other way use or exploit any of the content of the Flowglad Service or other Flowglad Materials other than for their authorized purposes. You will use Flowglad Materials solely for your own internal use, unless you’ve obtained the prior express written permission of Flowglad to authorize other users to access the Flowglad Service or use such Flowglad Materials. (f) You will not delete or alter any proprietary rights or attribution notices in any content or Flowglad Materials obtained through the Flowglad Service. (g) You agree that you do not acquire any ownership rights in any content provided by Flowglad, its licensors, or other third parties, or in any Flowglad Materials. We do not grant you any licenses, express or implied, to any Flowglad Materials except as expressly provided in these Terms, in connection with such content or materials, or as contained in a binding contract between you or the Customer and Flowglad.

3. PERSONAL DATA AND PRIVACY. To operate the Flowglad Service as intended, Flowglad collects and processes certain personal data. Please refer to Flowglad’s Privacy Policy, which is incorporated into and forms a part of these Terms, and informs users of our policies and practices related to collection, storage, processing, destruction, and other use of personal data. You understand and agree that no data transmissions over the Internet can be guaranteed to be 100% secure and that Flowglad cannot ensure or warrant the security of any information transmitted to us.

4. OWNERSHIP AND DATA USAGE RIGHTS. (a) All content and materials on the Website or made available through the Flowglad Service, including the Software, text, graphics, logos and images (“Flowglad Materials”), are the property of Flowglad or its suppliers or licensors. All Flowglad Materials are protected by copyright and/or other laws that protect intellectual property and proprietary rights. You agree to comply with all copyright and other proprietary notices, legends or other restrictions applicable to any Flowglad Materials. (b) Any data, content, designs, data, information or materials you upload or post to the Flowglad Service on behalf of the Customer (“Customer Data”) remain the property of the Customer, subject to the rights of use contained in these Terms and Flowglad’s Privacy Policy. (c) The Flowglad Service tracks metadata and other usage data related to your use of the Flowglad Service (“Usage Data”) and shares such data with Flowglad. Flowglad shall own such Usage Data, other than the personal data incorporated therein. You agree that Flowglad shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Flowglad Service and Flowglad’s products and services generally. Flowglad may retain and use Usage Data permanently. To the extent such Usage Data contains any individually identifiable data or personal data, Flowglad shall not sell or otherwise provide such Usage Data to any third party unless the data been anonymized (e.g., no name or address attached to the particular data) and/or aggregated with other users’ data, so that it is not identifiable as to any particular person. Notwithstanding the foregoing, Flowglad may share Usage Data in its original form as necessary or appropriate to provide services to the Customer, to comply with legal obligations or to exercise its legal rights. (d) If you provide any suggestions, ideas or feedback to Flowglad (“Feedback”), Flowglad shall have a royalty-free, worldwide, irrevocable, perpetual license to use such Feedback and incorporate it into or use it to improve Flowglad’s software, products and services.

5. LINKS TO THIRD PARTY SITES. If you decide to access or use any third party websites linked to the Flowglad Service, you do this entirely at your own risk.

6. TRADEMARKS. Flowglad’s name and its service marks, trademarks and logos, as well as any other Flowglad product and service names and logos displayed on the Website or Flowglad Service, are registered trademarks or trademarks of Flowglad Software, LLC or its affiliates. The names of third party companies and their trademarks are the property of their respective owners and may also be trademarks. Flowglad’s trademarks may be used publicly only with prior written permission from Flowglad.

7. TERM AND TERMINATION. These Terms shall remain in force until terminated by either party. These Terms and your right to access to the Flowglad Service automatically terminate, without notice to you, if Flowglad’s contract with the Customer terminates or if your employment or engagement with the Customer terminates. Either you or Flowglad may also terminate these Terms at any time, for any or no cause, by giving notice to the other party. Without limiting the foregoing, if you breach any of the terms of these Terms, Flowglad has the right, at its sole discretion and without prior notice, to suspend, modify, disable, or terminate your account or your use of the Flowglad Service. Upon termination, you will no longer have access to the Flowglad Service and the Customer Data thereon, except as described in this subsection. The Customer will have access to the Customer Data in accordance with the terms of its agreement with Flowglad.

8. INDEMNIFICATION. You agree to indemnify and hold Flowglad harmless from and against any and all actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including attorneys’ fees) that Flowglad may incur or suffer in connection with any data or content input or uploaded to the Flowglad Service, or by reason of the breach or alleged breach of any of your obligations under these Terms.

9. ASSIGNMENT. You may not allow others to use your Flowglad Service account, and these Terms may not be assigned by you, without Flowglad’s prior written consent, which will not be unreasonably withheld. Flowglad may freely assign these Terms.

10. WARRANTIES AND DISCLAIMERS. Flowglad WARRANTS THE Flowglad SERVICE SOLELY TO THE CUSTOMER. NO WARRANTIES ARE MADE TO YOU OR ANY OTHER USER OF THE Flowglad SERVICE ON A PERSONAL BASIS. EXCEPT AS SPECIFICALLY AGREED BY Flowglad IN WRITING, THE Flowglad SERVICE AND OTHER Flowglad MATERIALS ARE PROVIDED “AS IS” AND Flowglad AND ITS LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Flowglad DOES NOT WARRANT THAT THE Flowglad SERVICE IS ENTIRELY ERROR-FREE. Flowglad’S AND ITS LICENSORS’ TOTAL LIABILITY TO YOU FOR ANY CLAIM OR DAMAGE ARISING OUT OF THESE TERMS, INCLUDING ANY USE OF OR INABILITY TO USE THE Flowglad SERVICE OR OTHER Flowglad MATERIALS, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE TOTAL AGGREGATE AMOUNT OF $10. IN NO EVENT SHALL Flowglad OR ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS, LOST DATA, INTERRUPTIONS OF BUSINESS, OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE Flowglad SERVICE OR OTHER Flowglad MATERIALS, REGARDLESS OF WHETHER Flowglad HAS NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE. Some jurisdictions prohibit certain limitations of damages in consumer contracts, so the above limitations may be superseded by law in some jurisdictions.

11. APPLICABLE LAWS. (a) Flowglad controls the Flowglad Service from its offices in the United States of America. Flowglad makes no representation that the Flowglad Materials are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. Those who choose to access the Flowglad Service from other locations do so on their own initiative and are responsible for compliance with applicable local laws. (b) You may not use or export the Flowglad Materials other than as permitted by the Customer’s agreement with Flowglad. (c) These Terms shall be governed by the laws of the state of Delaware, excluding conflicts of laws rules. You consent to the exclusive jurisdiction and venue of courts in Delaware in all disputes arising out of or relating to these Terms. (d) Flowglad’s provision of the Flowglad Service and other Flowglad Materials and services is subject to existing laws and legal process, and nothing contained in these Terms limits Flowglad’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Flowglad Service, other Flowglad Materials, or Customer Data.

12. MISCELLANEOUS. Except as otherwise specified herein, these Terms constitute the entire agreement between you and Flowglad with respect to the Flowglad Service. Except for the Privacy Policy and any binding written contract between you and Flowglad, these Terms supersede all other prior or contemporaneous communications and understandings, whether electronic, oral or written, between you and Flowglad with respect to the Flowglad Service. If any provision of these Terms is found void or unenforceable, all other provisions and terms shall remain in full force and effect. The failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.

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Supplier Terms and Conditions

This Supplier Agreement (the “Agreement” or “Supplier Terms”) is a legally binding agreement between each individual person or entity accessing or using the Supplier Services (“you”) and Flowglad LLC, a Delaware limited liability company (“Flowglad,” “we,” “our,” or “us”). This Agreement is effective as of the date on which you submit this form by clicking the “Create Account” box made available through this website, which action you acknowledge constitutes your electronic signature (the “Effective Date”).

THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT OUT.

Flowglad operates an online platform that enables suppliers (“Suppliers”) to offer products (including digital goods and/or physical goods, as applicable) (“Products”) for purchase and resale by Flowglad to end customers (“Buyers”) through checkout and related commerce tools provided by or through Flowglad (the “Platform”). Flowglad acts as the merchant of record and reseller for sales completed through the Platform, such that, when Flowglad accepts a Buyer’s order, the Buyer is purchasing the applicable product or service from Flowglad. Flowglad, in turn, purchases the applicable Product from the Supplier as principal and then resells it to the Buyer under Flowglad’s buyer-facing terms.

Supplier will be provided access to and use of the Platform as part of the Supplier Services.

In consideration of the mutual covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, Supplier and Flowglad agree as follows:

1. Definitions

1.1 “Account” means each individual Supplier account in the Platform that is associated with Supplier’s use of the Supplier Services. 

1.2 “Administrative User” means Supplier’s primary contact person with Flowglad, who has full access to the Supplier Services and has the right and ability to control access for all other Authorized Users (i.e., can grant or restrict Platform access for other Authorized Users).

1.3 “Authorized User(s)” means any person that Supplier allows to have access to the Supplier Services, Platform, and Supplier’s account, including Supplier’s employees and staff and any third parties that Supplier allows to view or use the Supplier Services.

1.4 “Confidential Information” means all proprietary and confidential information exchanged by the parties or to which access is provided by one party to the other, including the Flowglad Software; trade secrets; the substantive terms of this Agreement; a party’s non-public business, strategic and financial information; any plans, programs or forecasts; intellectual property; Supplier Data; Third-Party Software and other third-party confidential information that is disclosed by one party to the other, any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may also disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to such disclosure.

1.5 “Flowglad Software” means the hosted computer software and related technology that Supplier is granted the right to access and use as part of the Supplier Services, including all applicable systems, modules, web pages, websites, databases, software code, and other technology, together with any modifications, updates, and documentation thereto, as made available by Flowglad LLC through software and services provided by Flowglad Inc.

1.6 “Gross Price” means, for a given Transaction, the price established by Flowglad and the amount charged to the Buyer (exclusive of transaction taxes and similar pass-through charges, as determined by Flowglad and excluding any refunds, chargebacks, and reversals).

1.7 “Prohibited Products” means the products listed on Appendix A hereto. 

1.8 “Supplier Data” means all information and data input by Supplier or its Authorized Users into the Platform, including all usernames, passwords, and other data provided by Supplier and its Authorized Users. However, Supplier Data does not include the Usage Data relating to Supplier’s and its Authorized Users’ use of the Supplier Services.

1.9 “Supplier Services” means the products, services, software, tools, functionality, and related support made available by Flowglad to Supplier through the Platform or otherwise, including, without limitation, services that enable Supplier to list, market, price, sell, and manage Supplier Products through the Platform; merchant-of-record services; order administration; support tools; and any updates, enhancements, or modifications thereto. The Supplier Services may include Third-Party Software that is embedded within the Platform or is made available to Supplier under the terms of this Agreement, but excludes Third-Party Software that is licensed or provided to Supplier under a separate license or agreement. Flowglad utilizes certain proprietary e-commerce software and SaaS services made available by Flowglad Inc. (the Flowglad Software) pursuant to an internal or third-party arrangement. Flowglad Inc. is not a party to these Supplier Terms and does not provide the Supplier Services, and Supplier’s rights with respect to the Flowglad Software arise solely through Flowglad LLC’s provision of the Supplier Services under this Agreement.

1.10 “Third-Party Software” means any software or technology (including open source software) that is not part of the Flowglad family of products.

2. Access to Supplier Services 

2.1 Supplier Services. Flowglad grants Supplier the non-exclusive and non-transferable right and license to access and use the Supplier Services, including the Platform, during the term of this Agreement, subject to the terms and conditions of this Agreement. Flowglad will make the Supplier Services available for Supplier and its Authorized Users to access during the term of this Agreement, subject to the terms and limitations set forth herein. The Platform may be hosted on Flowglad’s servers or, at Flowglad’s option, on the servers of a third party that is in the business of hosting web-based applications.

2.2 Access and URL. During the term of this Agreement, from and after completion of initial configuration of the Supplier Services for Supplier, and provided that Supplier has paid all fees due and owing and is in compliance with the terms of the Agreement, Supplier and its Authorized Users will be able to access the Supplier Services and use the Platform. Flowglad may provide a URL for a website for use by Supplier in the form of a sub-domain of Flowglad’s or Flowglad Inc.’s registered URL as chosen by Flowglad. If Supplier chooses to sub-mask or forward a different URL to the URL provided by Flowglad, then Supplier is solely responsible to independently purchase, retain ownership of, and uphold terms and conditions of such URL.

2.3 Authorized Users. Authorized Users are granted a nonexclusive, non-transferable right to access and use the Supplier Services, including the Platform, for the sole benefit of Supplier, subject to the terms of Flowglad’s Authorized User Terms of Service, the current version of which is attached as Exhibit 1. Each Authorized User must accept the Authorized User Terms of Service prior to accessing the Supplier Services. The Authorized User Terms of Service may be modified from time to time in Flowglad’s discretion; updated versions shall be effective upon notice to Authorized Users. Flowglad’s commitments, representations, and indemnities set forth in this Agreement apply only to the Supplier itself.

2.4 Restrictions. Supplier and its Authorized Users will comply with the following restrictions and limitations: (a) not market, advertise, offer for sale, or sell any of the Prohibited Products in connection with its use of the Supplier Services; (b) not copy or modify the content on the Flowglad websites or the Platform (other than Supplier Data provided by Supplier), or any other materials or other proprietary documents provided by Flowglad; (c) not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Platform or the Flowglad Software; (d) not sublicense, distribute or sell the Supplier Services, the Platform, or the Flowglad Software or Supplier’s rights thereto, or allow any third parties to use or access the Supplier Services, the platform, or the Flowglad Software; and (e) take all reasonable precautions to prevent Supplier’s employees and consultants from making unauthorized copies of the Flowglad Software, or other Flowglad Materials or intellectual property, or misusing the Supplier Services or such Flowglad Materials or intellectual property in any way that would constitute a breach of this Agreement.

If Supplier discovers any breaches of this Agreement by it or breach of the Authorized User Terms of Service by its Authorized Users, it will promptly notify Flowglad and take commercially reasonable actions to resolve the problem, including any actions reasonably requested by Flowglad, as soon as reasonably possible. Flowglad reserves the right to audit Supplier’s use of the Supplier Services, upon twenty-four (24) hours’ prior written notice to Supplier, to confirm that Supplier’s use of the Supplier Services is in compliance with the terms of this Agreement. Supplier acknowledges the Flowglad may also monitor the Supplier Services and Supplier’s use thereof on Flowglad’s systems.

2.5 Administrative User. Supplier will designate one Authorized User to be its Administrative User and may designate up to two additional Authorized Users as backup Administrative Users. An authorized representative of Supplier will notify Flowglad of the name and contact information for the Administrative Users, and any changes to the persons designated as primary or backup Administrative Users. The Administrative User is given administrative access to Supplier’s account on the Supplier Services and is responsible for granting or restricting Supplier Services access for other Authorized Users. The Administrative User is also the primary contact person for Supplier with Flowglad or its agents, and such person’s instructions and requests to Flowglad or its agents will have priority over the instructions or requests of any other employee or representative of Supplier.

2.6 Business Opportunities for Supplier. Flowglad may from time to time notify Supplier of services, products, or other business opportunities arising out of Flowglad’s business, including its dealings with other Suppliers, customers, and vendors of Flowglad. In each case Supplier will have the right to elect whether or not to participate in such transaction or to receive additional information, on an “opt-in” basis.

2.7 Third-Party Software. Any open source components of the Platform or Supplier Services are subject to the applicable third-party open source license terms; Flowglad will use reasonable efforts to make such terms available upon request. Other Third-Party Software that is embedded in the Platform, Supplier Services, or Flowglad Software, or is provided by Flowglad as an integrated part of the Supplier Services, is provided by Flowglad to the Supplier pursuant to the applicable terms of this Agreement, unless a separate third-party license or agreement for such Third-Party Software is provided to or applicable to Supplier. Third-Party Software is authorized only for use in connection with the Supplier Services, unless otherwise permitted under an open source license.

3. Ownership

3.1 Flowglad Ownership. Flowglad and/or its licensors retain all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the Platform and Supplier Services, including the Flowglad Software, documentation and all content provided by Flowglad as part of the Supplier Services, including any customized software or other derivative works, subject to the grants of rights and licenses set forth in this Agreement. Flowglad also owns all right, title and interest in and to (i) the usage data relating to its Suppliers’ use of the Supplier Services (“Usage Data”), and (ii) the results or information provided by third-party vendors in response to actions or queries of Suppliers (excluding any Supplier Data that is contained within the vendor’s response). Flowglad specifically reserves all rights not expressly granted to Supplier in this Agreement.

3.2 Supplier Data. Supplier owns and shall retain all right, title and interest in and to Supplier Data, subject to Flowglad’s rights as set forth below. Flowglad will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Supplier Data. Supplier grants Flowglad the right to use, reproduce, modify and distribute Supplier Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Supplier Data, create and distribute reports, and to provide, modify and improve the Supplier Services, Platform, and Flowglad Software. Supplier authorizes Flowglad to transmit Supplier Data to, and retrieve data from, third-parties as necessary to provide the Flowglad Service. Flowglad is not responsible for third-party services and does not control their performance, availability, or decisions. To the extent permitted by applicable law, Supplier also grants Flowglad the right to share Supplier Data with third parties in connection with Flowglad’s general activities of conducting business, including providing Supplier with possible solutions to their business needs, and developing and providing third party integrations with the Flowglad Software (pulling credit, data decoding, data lookup, automated telephone calls, merchant services, etc.).

3.3 Usage Data and De-Identified Data. Flowglad has the right to monitor Supplier’s and its Authorized Users’ use of the Supplier Services to obtain Usage Data, including usage patterns (e.g., levels of use based upon days of the week and times), and level of usage for different functions of the Supplier Services as examples. Flowglad also has the right to collect, aggregate and remove all personally identifiable information from Supplier Data, and to retain, use and disclose such de-identified data (the “De-Identified Data”) for any purpose permitted by law, including without limitation benchmarking, product and service development, development of best practices, making it available to third parties, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Supplier. Flowglad shall own all De-Identified Data, including any calculations, functions, features, or other modifications of the Supplier Data, excluding the Supplier Data in its raw form.

3.4 Feedback and Suggestions. If Supplier or its Authorized Users provide any suggestions, ideas or feedback to Flowglad (“Feedback”), Flowglad shall have a royalty-free, worldwide, irrevocable, perpetual license to use such Feedback and incorporate it into or use it to improve the Platform, the Supplier Services, the Flowglad Software, and any other Flowglad products and services. Flowglad shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered by Flowglad to Supplier in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the rights granted herein to Supplier.

4. Supplier Services 

4.1 Flowglad as Principal Reseller. Supplier acknowledges that Flowglad acts as merchant of record (and as principal reseller) for Transactions completed through the Platform and the Supplier Servies. When Flowglad accepts a Buyer’s order for a Product, the Buyer is purchasing the Product from Flowglad, and Flowglad will collect the Buyer payment (including any applicable transaction taxes) using Flowglad’s or its payment partner’s checkout and payment rails (each a “Transaction”). For each accepted Buyer order, Flowglad purchases the applicable Product from Supplier and resells it to the Buyer, completing the Transaction. Amounts payable by Flowglad to Supplier for such purchase(s) will be calculated in accordance with Section 6.2 (each such payout, a “Supplier Payout”).

4.2 Flowglad Responsibilities. Subject to this Agreement, Flowglad will: (a) establish a Supplier account and provide Supplier access to the Platform to list and manage Products and review Transaction and payout information; (b) act as a non-exclusive reseller and merchant of record for Products sold through the Platform in Flowglad-supported territories; (c) facilitate fulfillment by enabling Buyer access to Products, including by connecting Suppliers to Buyers and providing mechanisms for download and Product access, as applicable; (d) provide order-level customer support related to checkout, payment, refunds, chargebacks, and order administration, and coordinate with Supplier as needed to resolve Product-specific issues; and (e) determine, collect, and (as applicable) remit sales, use, VAT, and similar transaction taxes on Transactions between Flowglad and Buyers in accordance with applicable law and Flowglad’s tax processes.

4.3 Onboarding. If you are accepted as a Supplier, Flowglad will issue a Supplier account that provides access to the Platform and enables Supplier to list Products, manage Supplier settings, and view Transactions made by Flowglad to Buyers and the amounts due to Supplier in connection with Flowglad’s purchase of Products from Supplier. Flowglad may require Supplier to provide information and complete onboarding, identity and/or business verification, and related due diligence processes. Supplier agrees to timely provide complete and accurate information and documentation requested by Flowglad or its partners in connection with such onboarding or any ongoing monitoring or periodic re-verification, and to promptly update such information as needed. 

4.3.1. Acceptance and continued eligibility to use the Supplier Services are subject to ongoing review and approval. Flowglad may, in its sole discretion and at any time, approve, condition, suspend, or revoke Supplier’s access to the Supplier Services (including by closing or limiting a Supplier account, delaying or suspending Supplier payouts, or requiring additional information or controls), including where Flowglad determines that Supplier or any Product presents elevated risk, is not eligible under Flowglad policies, fails to satisfy onboarding or verification requirements, or may cause Flowglad or its partners to violate applicable law, card network rules, or partner requirements.

4.3.2 Flowglad may engage one or more payment partners to facilitate Buyer payments and Supplier Payouts, and Supplier agrees to comply with any applicable terms, policies, or requirements of such payment partners as communicated by Flowglad from time to time. Supplier will onboard through Flowglad’s designated payment partner (including, where applicable, Stripe Connect as a  “Payouts User”) and will provide accurate bank account and other payout information as requested by Flowglad or its payment partner. Supplier acknowledges that payout timing and availability may be affected by the processing, settlement, and risk rules of Flowglad’s payment partner. 

4.4 Account Credentials. You are responsible for maintaining the confidentiality of all credentials used to access your Supplier account. You will not share your password or access credentials, or lend, sublicense, or otherwise transfer access to your account to any third party, except as expressly permitted for Authorized Users under this Agreement. You will promptly notify Flowglad of any unauthorized use of your credentials or any other suspected breach of security relating to your Supplier account.

4.5 Product Registration. Supplier may register individual Products for sale through the Platform, including by providing Product descriptions, specifications, suggested pricing, and any other information required by the Platform from time to time. Flowglad may require you to identify and provide additional information or documentation for any Product, including to verify compliance with applicable law, card network rules, and Flowglad policies. You represent and warrant that all Product information you submit or make available through the Platform is complete, accurate, and not misleading, and that you will not misrepresent any Product (including as to features, quality, availability, or any required disclosures). You will promptly update Product information to ensure it remains current. Flowglad may, at any time and in its sole discretion, remove, disable, suspend, or delist any Product (in whole or in part), with or without notice, including for compliance, risk, fraud prevention, quality control, reputational concerns, or operational reasons. Flowglad will have no liability to Supplier for any such removal or delisting, including for any resulting loss of sales, revenues, or opportunity.

4.6 Product Pricing. Supplier will specify a non-binding price recommendation for each Product listed on the Platform (the “Recommended Price”). Supplier acknowledges that Flowglad acts as a principal reseller and is under no obligation to offer any Product at the Recommended Price. Flowglad will determine, in its sole discretion, the price(s) and other pricing terms on which Flowglad offers Products to Buyers, including the final Buyer-facing price for any Transaction. Upon Flowglad’s acceptance of a Buyer order, Flowglad will purchase the applicable Product from Supplier for an amount equal to the Gross Price, as defined herein, less applicable taxes due for the specific sale to Buyer and less the Flowglad Discount (as set forth herein and/or the Flowglad pricing page, as may be updated from time to time). Flowglad is not responsible for, and may correct, any typographical, listing, or pricing errors (including errors caused by Supplier-provided information or technical issues). Flowglad may cancel, refuse, or reverse any order that results from such an error, and may issue any related refund or credit to the Buyer without liability to Supplier.

4.7 Transfer of Title. Title to each Product sold through the Platform will transfer from Supplier to Flowglad at the time Flowglad accepts the applicable Buyer order, and, concurrently, risk of loss or damage to such Product will transfer from Supplier to Flowglad. Title to, and risk of loss for, the Product will then transfer from Flowglad to the Buyer in accordance with Flowglad’s terms (including, as applicable, when the Product is shipped or otherwise made available to the Buyer). Supplier will promptly execute and deliver any documentation and cooperate in good faith with Flowglad’s reasonable requests (including completing tax, customs, regulatory, or inspection forms) to evidence, perfect, or effectuate such transfer of title, and Flowglad may withhold Supplier Payouts until such cooperation is provided. The transfer of title contemplated by this Section 4.7 includes, to the extent applicable, Supplier granting (or causing to be granted) to Flowglad, effective upon Flowglad’s acceptance of the applicable Transaction, all rights, licenses, and authorizations necessary for Flowglad to resell, provide, and make available such Product to the Buyer, including the right for Flowglad to license, activate, and deliver appliable license keys, entitlements, usage rights, and access associated with the Product. 

4.8 Refunds and Buyer Disputes. Flowglad may, in its sole discretion, issue refunds, credits, partial refunds, or other price adjustments to Buyers in connection with any Transaction, including to resolve Buyer disputes, suspected fraud, product quality or performance issues, fulfillment or delivery issues, pricing or technical errors, or to comply with applicable law, card network rules, or Flowglad policies. Supplier authorizes Flowglad to recover the amount of any such refund, credit, or adjustment (and any associated costs, fees, or penalties) by withholding or offsetting such amounts against Supplier Payouts or any other amounts payable to Supplier under this Agreement, in each case, without Supplier’s approval. If such deductions exceed amounts otherwise payable to Supplier, Supplier will promptly pay Flowglad the resulting negative balance upon demand.

4.9 Chargebacks. Flowglad will receive and manage chargebacks, retrieval requests, and other cardholder disputes as merchant of record. Supplier will reasonably cooperate with Flowglad in connection with any dispute or chargeback, including by timely providing documentation, evidence of fulfillment, customer communications, and other information requested by Flowglad. Flowglad may recover all chargebacks, dispute reversals, and related losses by withholding or offsetting such amounts against Supplier Payouts or any other amounts payable to Supplier under this Agreement, in each case, without Supplier’s approval. If such deductions exceed amounts otherwise payable to Supplier, Supplier will promptly pay Flowglad the resulting negative balance upon demand. In addition, Flowglad may assess a per-chargeback fee for each chargeback received in connection with a Supplier Product, in the amount specified on the pricing page (as may be updated from time to time), and may recover the Chargeback Fee in the same manner. 

4.10 Reserves; Holds. A If Flowglad determines, in its sole discretion, that Supplier has elevated refund or chargeback rates or otherwise presents increased risk, Flowglad may establish and maintain a reserve or other holdback by delaying release of some or all Supplier Payouts for a reasonable period of time, and may apply such reserve to anticipated or actual refunds, chargebacks, fees, penalties, or other amounts owed to Flowglad. In addition to any other rights or remedies, Flowglad may set off and/or recoup any amounts Supplier owes to Flowglad (including Fees, chargeback fees, refunds, credits, penalties, and any other amounts due under this Agreement) from any amounts otherwise payable by Flowglad to Supplier, including Supplier Payouts.

4.11 Taxes and duties. Flowglad will determine, calculate, collect, and (where required by applicable law) remit transaction taxes on sales of Products by Flowglad to Buyers, including sales tax and VAT, based on the information available to Flowglad and the data and classifications provided by Supplier. Supplier will provide, and will ensure the ongoing accuracy of, all information and documentation reasonably requested by Flowglad to enable correct tax determination and compliance. Supplier acknowledges that Flowglad’s tax treatment may depend on Supplier’s data and representations, and Supplier will promptly notify Flowglad of any changes that could affect tax calculations. Notwithstanding the foregoing, Supplier remains solely responsible for any taxes imposed on Supplier’s income, net profits, or similar taxes, and any taxes, duties, customs charges, tariffs, or similar governmental assessments imposed directly on Supplier or arising from Supplier’s importation or fulfillment activities (including import duties), as well as any taxes that Flowglad does not collect or withhold. Supplier will timely pay all such taxes and will cooperate with Flowglad in good faith to support audits, inquiries, and documentation requests relating to tax compliance.

5. Additional Supplier Obligations

5.1 Obligations. Supplier will: (a) be responsible for its and its Authorized Users’ compliance with this Agreement and the Authorized User Terms of Service; (b) be responsible for the accuracy, quality and legality of Supplier Data and of the means by which Supplier acquired such data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Supplier Services, and notify Flowglad promptly of any such unauthorized access or use; (d) use the Supplier Services only in accordance with its documentation (as available) and/or its intended purpose; (e) not make the Supplier Services available to anyone other than Authorized Users; (f) not use the Supplier Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) not use the Supplier Services to store or transmit any virus, Trojan, worm, or other malicious or harmful computer software code or routines; (h) not interfere with or disrupt the integrity or performance of the Supplier Services or third party data contained therein; (i) not attempt to gain unauthorized access to the Platform, Supplier Services, or its related systems, networks, or other user data; (j) not engage in copying, scraping, or reverse engineering of the Platform, Flowglad Software, or any aspect of the Supplier Services; (k) not use the Supplier Services for spamming, phishing, pharming, or for any obscene or immoral purpose; (l) not use the Supplier Services to interfere with or circumvent the security features of the Supplier Services; (m) in the event of a dispute, not engage in any conduct or communication, public or private, that disparages Flowglad or any of its products or services (other than within legal proceedings); and, (n) conduct itself, and require that its employees conduct themselves, in a professional manner during interactions with all Flowglad personnel.

5.2. Compliance. Supplier represents and warrants that it will comply with all applicable laws, rules, and regulations relating to its Products and any activity it performs in connection with the Supplier Services and platform. Supplier represents and warrants that it holds all necessary rights, titles, and interests in and to the Products offered for sale, and that it owns or otherwise has the lawful right to use, reproduce, display, distribute, and make available all content, copyrighted works, trademarks, and other intellectual property included in or used to market or provide the Products. This includes, without limitation, Product descriptions, specifications, images, screenshots, marketing materials, and any other materials distributed by Supplier, as well as any content or information Supplier provides to Flowglad in connection with the Supplier Services. Supplier represents and warrants that it will not market, sell, deliver, or provide Products in violation of applicable export controls, trade sanctions, or embargo laws, and will provide Flowglad any territory restrictions or screening requirements reasonably necessary for Flowglad’s compliance.

5.3. Forms. Supplier must promptly complete, sign, and submit any forms related to tax, customs, regulatory, or inspection purposes that Flowglad requires to ensure the transfer of title to the Products in any jurisdiction. Failure to comply with this requirement may result in the withholding of Supplier Payouts or the termination of Supplier Services.

5.4. Complaints. Supplier must notify Flowglad of any complaint received by Supplier regarding any Product offered through the Platform within twenty-four hours of receiving such complaint.

5.5 Usage Limitations. The Supplier Services may be subject to other usage limitations, such as, for example, limits on storage space, on the number of calls Supplier are permitted to make against an API (application programming interface), and, for any portion of the Supplier Services that enables Supplier to provide hosted websites, on the number of page views by visitors to those websites, or the size of the hosted content.

5.6 Supplier Security Requirements. Supplier is solely responsible for the security of data residing on server(s) owned or operated by Supplier or a third party designated by Supplier (e.g., a web hosting company, processor, or other service provider), including being responsible for the security of all data residing outside of the Supplier Services, as well as keeping confidential all usernames and passwords of Authorized Users in order to avoid unauthorized access to the Supplier Services.

5.7 Flowglad Security Requirements. Flowglad will use commercially reasonable, industry-standard methods to safeguard the security of the Platform and Supplier Services, including processes of encryption of data, incident management policies, data backup policies and other procedures to ensure both the safety and security of the Supplier Data residing in the Supplier Services. In compliance with PCI-DSS, Flowglad is responsible for the security of cardholder data that it holds and resides on the Platform. This includes securing cardholder data that is stored, processed, or transmitted by Flowglad on behalf of the Supplier, to ensure the security of cardholder data and its environment. Flowglad is not responsible for the security of cardholder data that is not stored, processed, or transmitted by Flowglad.

5.8 Product Conformity. Supplier is responsible for product claims. Each Product will conform in all material respects to the descriptions, specifications, and claims made available on the Platform, and Supplier will not make any Product claim that is false, misleading, or not adequately substantiated. Supplier must comply with all advertising and marketing laws, including, without limitation, the Federal Trade Commission Act, CAN-SPAM Act, Telephone Consumer Protection Act, and any similar applicable regulations. Any violation of this Section or Flowglad marketing and product policies shall constitute a material breach of these Terms and may, at Flowglad’s sole discretion, result in immediate suspension or permanent shutdown of the Supplier's account.

5.9 Records; Audit. Supplier shall maintain complete and accurate records relating to its Products and its activity, under this Agreement, including its transactions with Flowglad, transactions for at least three (3) years (or longer if required by applicable law), and shall provide such records to Flowglad promptly upon request. Supplier shall reasonably cooperate with Flowglad’s compliance, fraud, and dispute management efforts, including by responding to information requests within the timeframes specified by Flowglad and cooperating with any audits reasonably required by Flowglad’s payment partners, card networks, or regulators.

5.10 Regulatory Inquiries. Supplier shall promptly notify Flowglad of: (i) any governmental or regulatory inquiry, investigation, notice, or threatened enforcement relating to Products or Supplier’s marketing of Products, (ii) any material safety issue, defect, vulnerability (including cybersecurity vulnerabilities affecting digital Products), or other issue reasonably likely to result in harm or material consumer complaints, and (iii) any corrective action relating to Products. Supplier shall cooperate with Flowglad on any remediation or other action Flowglad deems reasonably necessary to address risk, comply with law, or satisfy payment partner or card network requirements.

6. Fees and Supplier Payouts

6.1 Fees & Costs. All fees, Flowglad Discounts, and other amounts payable in connection with the Supplier Services (“Fees”) will be charged in U.S. Dollars unless Flowglad agrees otherwise. Fees and applicable rates are outlined on Flowglad’s pricing page within the Platform or Flowglad website, as may be updated from time to time. Supplier is responsible for and will pay all Fees, and Flowglad may collect such Fees, in each case, as set forth on Flowglad’s pricing page. All fees are charged at the time of purchase, usage, or approval of charge, as applicable to that particular type of fee. Except as expressly stated in this Agreement, all Fees are non-refundable. In the event of a conflict between the Pricing Page and this Agreement with respect to Fees, the Pricing Page will control.

6.1.1 New Features. Flowglad may add services or features to the Supplier Services that will be available to Supplier on an optional basis and may be subject to additional fees. Fees for these new features or services will be specified in each case.

6.1.2 Pricing Changes. All fees and other amounts payable in connection with the Supplier Services are subject to change at any time in Flowglad’s sole discretion. Flowglad will post any material changes to applicable fees on the pricing page within the Platform or Flowglad website, and any such changes will apply prospectively upon posting or as of the effective date specified in such notice.

6.1.3 Remedies for Nonpayment. In addition to any other rights or remedies, Flowglad may set off and/or recoup any amounts Supplier owes to Flowglad (including Fees, chargeback fees, refunds, credits, penalties, and any other amounts due under this Agreement) from any amounts otherwise payable by Flowglad to Supplier, including Supplier Payouts. In addition, if Supplier’s account is more than 10 days past due and the overdue amounts have not been paid within ten (10) days after receipt of written notice of such breach (including by an on-screen non-payment notification to Supplier within the Supplier Services), Flowglad has the option and right to require payment on the account by partially or fully suspending and blocking Supplier’s and its Authorized Users’ access to the Supplier Services until all past-due amounts are paid. Supplier’s account may be assessed additional fees for blocking or unblocking the account due to late payment, and Supplier hereby consents to this collection practice. This express statement of remedy is not a waiver of any other remedies available the Flowglad in law or equity.

6.2 Supplier Payouts. Subject to applicable withholding, offset, and reserve rights, for each Transaction Flowglad will owe Supplier a Supplier Payout equal to the Gross Price minus: (i) Flowglad’s then-current merchant-of-record discount fee (the “Flowglad Discount”) as reflected on the pricing page; (ii) appliable transaction taxes; and (iii) any other applicable deductions, withholdings, reversals, or adjustments permitted under this Agreement. For clarity, transaction taxes collected from Buyers are not payable to Supplier and will be retained and remitted (or arranged to be remitted) by Flowglad as contemplated by the Supplier Services. 

6.2.1 Payout Timing. Subject to this Agreement, Flowglad will initiate Supplier Payouts on a rolling basis, and will generally initiating payout within approximately two (2) business days after the applicable Transaction is captured/settled to Flowglad, recognizing that actual receipt depends on banking and processor timing, weekends/holidays, and compliance/risk holds. 

6.2.2 Payout Timing; Changes; Delays. Flowglad may delay, suspend, or change payout timing and payout frequency (including moving Supplier to a longer payout cadence) for risk assessment, fraud prevention, compliance reasons, dispute/chargeback exposure, or as otherwise permitted under this Agreement. 

7. Confidential Information

7.1 General Confidentiality Obligations. The party receiving Confidential Information will not disclose it to any person or use it for any purpose, except as expressly permitted by this Agreement. The receiving party may disclose Confidential Information only to its employees, representatives and contractors who need to know such information and who are bound to keep such information confidential. The receiving party will give Confidential Information at least the same level of protection as it gives its own confidential information of similar nature or sensitivity, but not less than a reasonable level of protection. The receiving party will maintain Confidential Information in a safe and secure place and will not copy such information, except to the extent reasonably necessary for the purposes of this Agreement.

7.2 Personal Data and Privacy. Flowglad agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Supplier Data, including personal information and personal data of Users and other individuals (“Personal Data”). Flowglad will not disclose or use Personal Data except (i) as set forth in this Agreement or the then-current Privacy Policy on Flowglad’s website, (ii) as compelled by law, (iii) as expressly permitted or instructed by Supplier, or (iv) as reasonably necessary in order to provide the Supplier Services and other services in connection with this Agreement. Flowglad shall require its employees and contractors to be subject to confidentiality undertakings with respect to Supplier Data, including Personal Data.

8. Warranties and Limitations of Liabilities

8.1 Supplier Warranties. Supplier represents and warrants that: (a) Supplier has the necessary right, power and authority to execute this Agreement and to perform Supplier’s obligations herein; (b) no authorization or approval from any third party is required in connection with Supplier’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Supplier, enforceable against Supplier in accordance with its terms; (d) Supplier’s obligations under this Agreement do not violate any law or breach any other agreement to which Supplier is bound; (e) all representations and statements made by Supplier in this Agreement, or in any other document relating hereto by Supplier or on Supplier’s behalf, are true, accurate and complete in all material respects; (f) Supplier is engaged in a lawful business that includes the sale of products, and Supplier has such permits and licenses as are required to conduct its business under the laws of all applicable jurisdictions in which Supplier conducts such business; and (g) Supplier will comply, at its sole expense, with all federal, state and local laws, policies, guidelines, regulations, ordinances or rules applicable to Supplier in connection with this Agreement and its use of the Supplier Services.

8.2 Flowglad Warranties. Flowglad represents and warrants that: (a) Flowglad has the necessary right, power and authority to execute this Agreement, to grant the rights and licenses herein granted to Supplier, and to perform Flowglad’s obligations herein; (b) no authorization or approval from any third party is required in connection with Flowglad’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Flowglad, enforceable against Flowglad in accordance with its terms; (d) From and after the Effective Date, Flowglad will use commercially reasonable efforts to provide Supplier with access the Supplier Services excluding downtime (i) scheduled in advance for maintenance on a periodic basis, (ii) due to unscheduled emergency maintenance, (iii) due to faults caused by Supplier or Supplier’s system, or (iv) due to other causes outside of the reasonable control of Flowglad, including without limitation malfunction or cessation of Internet services by any third party network or ISP or service interruptions caused by the third party cloud storage service. To the extent reasonably feasible, Flowglad will provide Supplier reasonable advance notice for emergency maintenance or performance interference issues, which will be published on the Platform’ status page. Flowglad’s warranty under Section 8.2(d) is conditional upon Supplier having in place, at a minimum, Flowglad’s then-current recommended infrastructure configurations.

8.3 Limitation of Warranties; Disclaimers. Flowglad does not warrant or guarantee that the Supplier Services will be uninterrupted, error-free, or free from any potential or actual security threats. The Supplier Services, Platform, and any software, and other services of Flowglad, are provided to Supplier and its Authorized Users on an “AS IS” and “AS AVAILABLE” basis. Flowglad AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS OF THE SUPPLIER SERVICES FOR ANY PARTICULAR PURPOSE OR INTENDED USE. Flowglad MAKES NO WARRANTIES WHATSOEVER AND IS NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY SUPPLIER AS A RESULT OF USING ANY THIRD-PARTY SERVICE OR SOFTWARE, EVEN IF LINKED TO OR INTEGRATED IN THE SUPPLIER SERVICES. Flowglad is not responsible or liable for damage, malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond Flowglad’s exclusive control. No employee of Flowglad or any third party has the right to make any representation or warranty regarding the Supplier Services, except as expressly set forth in this Agreement.

Without limiting the foregoing, and except as otherwise expressly set forth in this Agreement, Flowglad does not make any representation, warranty or guarantee as to the results that may be obtained from Supplier’s use of the Supplier Services or as to the accuracy or reliability of any information therein, or with respect to any third party product or service, whether integrated with the Supplier Services or not, or recommendations or information offered by any Flowglad personnel or third parties. Supplier understands and agrees that Flowglad shall bear no risk with respect to Supplier’s Products, including any risk associated with Supplier’s failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business or any other regulatory or legal requirements. Flowglad is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Supplier.

Supplier expressly agrees that Flowglad shall not be liable for any loss or damages whatsoever arising from or caused by (i) Supplier’s failure to properly activate, integrate, use or manage the Supplier Services; (ii) any fraudulent transactions; (iii) disruption of the Supplier Services attributable to a Force Majeure event; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems, or any products or services with which the Supplier Services are integrated; (v) any person’s unauthorized access to the Platform or to Supplier Data (including credit card number and other personally identifiable information), transaction data or personal information, except if such access is due solely to Flowglad’s grossly negligent or willful misconduct; or (vi) Third-Party Software that is not embedded within the Supplier Services.

8.4 Limitations of Liability. IN NO EVENT WILL FLOWGLAD, ITS AFFILIATES OR LICENSORS BE LIABLE FOR LOST DATA, LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FURNISHING, PERFORMANCE, OR USE OF ANY SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. FLOWGLAD’S AND ITS AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM(S), INCLUDING INDEMNIFICATION, WILL NOT IN ANY EVENT EXCEED THE AMOUNTS PAID BY SUPPLIER UNDER THIS AGREEMENT DURING THE ONE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; PROVIDED, HOWEVER, THAT IN THE CASE OF A CLAIM RELATING TO ANY SERVICES FOR WHICH A SEPARATE ONE-TIME FEE WAS CHARGED, THE CAP ON LIABILITY SHALL BE THE AMOUNT OF SUCH FEE. This limitation shall apply whether or not the alleged breach by Flowglad is a breach of a fundamental condition or fundamental term.

8.5 Legal Compliance; Use of Flowglad Forms. Supplier acknowledges that Flowglad’s personnel are not financial experts, attorneys, accountants or experts on the applicable laws of any state or jurisdiction. Flowglad personnel may consult with Supplier’s Authorized Users and provide assistance and recommendations, but Supplier is solely responsible for compliance with any applicable laws, regulations and professional standards by Supplier and its Authorized Users. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Supplier. THE FINAL DECISION ABOUT ANY ASPECT OF SUPPLIER’S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH SUPPLIER’S USE OF THE SUPPLIER SERVICES, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF SUPPLIER.

9. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

If you have a complaint, dispute, or controversy, you agree to first contact us at hello@flowglad.com to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Supplier Services, this Agreement, or your relationship with us that cannot be resolved through such informal process shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”), and judgment on the award rendered may be entered in any court having jurisdiction thereof. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of this Agreement, this arbitration provision, and any other terms incorporated by reference into this Agreement. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. 

Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses. The arbitrator shall follow the substantive law of the State of Delaware without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1‐16, as amended. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

You and we agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and we expressly waive any right to pursue any class or other representative action against each other. Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises.

This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1‐16, as amended. This provision survives termination of this Agreement or relationship with us, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION. YOU HAVE THE RIGHT TO OPT‐OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU ENTER THIS AGREEMENT OR USE THE SUPPLIER SERVICES (WHICHEVER COMES FIRST) BY WRITING TO US AT hello@flowglad.com 

10. Indemnification

10.1 By Flowglad. Flowglad will defend Supplier against any and all third party claims or suits (each a “Claim”) that the Supplier Services infringes any third party U.S. patent that has issued as of the Effective Date, copyright or trademark, or misappropriates any trade secret, and Flowglad will pay any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded in connection with such Claim or paid in settlement. If the Supplier Services are finally held or reasonably believed by Flowglad to infringe, Flowglad shall use reasonable efforts to obtain a license under the rights that have been infringed, to modify the Supplier Services so it is non infringing or to provide to Supplier a substitute service and/or software that is non-infringing; provided that if such options are not commercially reasonable, Flowglad may terminate the applicable Supplier Services or this Agreement upon written notice to Supplier, in which event Flowglad shall refund to Supplier all prepaid fees paid for any period after termination of this Agreement, as well as any period prior to termination during which Supplier was prevented from accessing the Supplier Services. Flowglad shall have no liability for infringement claims arising out of or related to any Third-Party Software, or arising out of modification of the Supplier Services by any party other than Flowglad or the combination or use of the Supplier Services with any software, equipment, product or process not furnished by Flowglad, or arising out of any unauthorized use of the Supplier Services by Supplier, if use of the Supplier Services alone, as authorized, and in its current, unmodified form would not have been an infringement. THIS SECTION STATES FLOWGLAD’S AND ITS LICENSORS’ ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

10.2 By Supplier. If any action is instituted by a third party against Flowglad (a) arising out of or relating to Supplier’s use of the Supplier Services, including without limitation (i) any breach or alleged breach by Supplier of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any breach of any applicable law or regulation governing or otherwise applicable to Supplier’s industry, business, or operations; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Supplier or its employees, or agents; or (iv) any claims associated with the provision of services by Supplier to Buyers; or (b) alleging that the Supplier Data, or the use of Supplier Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Supplier will defend such action at its own expense on behalf of Flowglad and shall pay all damages attributable to such claim which are finally awarded against Flowglad or paid in settlement of such claim.

10.3 Indemnification Procedure. Any party that is seeking to be indemnified under Section 10 (an “Indemnified Party”) for a third party Claim must (i) promptly notify the other party (the “Indemnifying Party”) of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 10 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense. The Indemnified Party may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing.

11. Term and Termination

11.1 Term. There is no set term or automatic expiration. This Agreement remains active until cancelled.

11.2 Cancellation without Cause. Flowglad and Supplier may cancel the Supplier Services or this Agreement at any time with or without cause.

11.3 Termination for Cause. Flowglad may terminate this Agreement at any time if Supplier party commits a material breach of this Agreement and does not cure such breach within fifteen (15) days of written notice specifying the nature of such breach (except for breaches by a party of its confidentiality obligations or payment obligations, for which the cure period will be five (5) business days after receipt of written notice of such breach, including by an on-screen non-payment notification to Supplier within the Supplier Services). A confidentiality breach is deemed cured, for purposes of this Section 11.3, if the Supplier (i) mitigates the damages resulting from the breach to the extent reasonably feasible; and (ii) takes reasonable steps, such as modifying its internal policies and practices, to prevent such a breach from reoccurring. Notwithstanding the foregoing, Flowglad may, in its reasonable business judgment, determine that a confidentiality breach was sufficiently material that it wishes to terminate this Agreement without permitting a cure, in which case the Flowglad shall so notify Supplier and this Agreement shall terminate at the end of the five (5) day notice period. Flowglad may also terminate or suspend Supplier’s account and this Agreement immediately, without prior notice, if Flowglad reasonably determines that Supplier is conducting an illegal business or if Flowglad is instructed to terminate or suspend Supplier’s account by federal or state regulatory authorities.

11.4 Effect of Termination. In the event of termination of this Agreement for any reason, Supplier shall immediately cease using the Supplier Services. After termination of this Agreement, Supplier will not have any access to the Supplier Services or the Supplier Data stored therein; it is Supplier’s sole responsibility to copy or remove such Supplier Data from the Supplier Services prior to termination. After termination, Flowglad has no obligation whatsoever to maintain or store Supplier Data and Flowglad will promptly delete or remove Supplier Data from its system. Flowglad reserves the right to store the Supplier Data after termination to comply with applicable laws and regulations. Each party shall promptly return to the other party or destroy all Confidential Information of the other party, and upon request of the other party will certify such return or destruction, provided that if retention of any Confidential Information is required by law or practice, then such retained Confidential Information shall be described in the applicable certification and remain subject to the terms of this Agreement. Supplier shall pay all accrued charges and fees within thirty (30) days of the date of termination. All provisions, rights, or obligations that by their nature are intended to survive (including, without limitation, provisions relating to fees and payment obligations, refunds and chargebacks, taxes, intellectual property, confidentiality, limitations of liability, and indemnities) will survive any expiration or termination of this Agreement.

12. Miscellaneous

12.1 Changes; Modifications. You acknowledge and agree that the Supplier Services, and Platform, and other materials that may be made available as part of the Supplier Services may be modified and updated from time to time, in Flowglad’s sole discretion. Flowglad does not make any commitment to you that it will maintain particular functions, features or materials as part of the Supplier Services. Flowglad may update this Agreement from time to time. You may be notified of such changes by email and/or Flowglad may require you to accept the new version of the Terms in order to continue accessing the Supplier Services. If you object to any changes in these Terms, you may discontinue your use of the Supplier Services.

12.2 Assignment. Supplier will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights granted herein to any third party (other than designating Authorized Users), without Flowglad’s prior written consent. Flowglad’s consent to an assignment of this Agreement by Supplier is subject to Flowglad’s review and approval of the proposed assignee. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, each Party’s respective successors and permitted assigns.

12.3 Governing Law. This Agreement shall be governed by the laws of State of Delaware (excluding conflicts of laws provisions). The parties submit to the exclusive jurisdiction and venue of Delaware courts with respect to any action between the parties relating to this Agreement. The prevailing party in any action shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.

12.4 Injunctive Relief. Supplier acknowledges that the Supplier Services and other Confidential Information are highly valuable to Flowglad and its licensors, and that money damages would not be a sufficient remedy for any breach of Supplier’s obligations herein with respect to confidentiality or misuse of Flowglad’s or its licensors’ proprietary materials and information. Therefore, in the event of any breach by Supplier of its obligations with respect to the scope of its rights or its confidentiality obligations, Flowglad or its licensors shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security, to the extent permitted by law.

12.5 Publicity. Neither party shall release or use the other party’s name, logo, trademark or other intellectual property, or reference this Agreement in any manner, except as specified in accordance with this Agreement, without the prior written consent of the other party; provided, that the foregoing shall not apply with respect to a party’s sales, marketing, investor, regulatory and similar non-public materials and discussions. Notwithstanding the foregoing, (i) Flowglad is permitted to include Supplier’s name and/or logo on Supplier lists on Flowglad’s website and in other marketing materials; and (ii) if requested by Flowglad, the parties will cooperate in good faith to issue a press release that acknowledges the partnership between the Parties within 60 days of the Effective Date.

12.6 Severability. In the event that any of the terms or provisions herein are determined by a court of competent jurisdiction to be unenforceable or invalid for any reason whatsoever, such terms shall be severed, and the enforceability or validity of the remaining terms shall not be affected thereby.

12.7 Entire Agreement; Waiver. This Agreement, including the addenda and exhibits attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Supplier in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on Flowglad and shall not apply to this Agreement unless mutually executed by Supplier and Flowglad. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.

12.8 Notices. All notices or other communications required under to this Agreement to Flowglad shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party set forth below or such other address a party may specify by written notice. Notwithstanding the foregoing, notices from Supplier to Flowglad regarding changes to or termination of Supplier’s use of the Supplier Services may also be sent to the email address hello@flowglad.com.

Flowglad Contact Information:

hello@flowglad.com

Flowglad LLC
169 Madison Ave STE 11846
New York, NY 10016 United States

All notices to Supplier shall be delivered through Flowglad’s internal communication portal, or otherwise via email to the email address provided by Supplier upon entering this Agreement or as updated by Supplier.

12.9 Force Majeure. Flowglad shall be excused from delays or failure to perform the Supplier Services or other services pursuant to this Agreement to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, pandemics, epidemics, labor disputes, or any other causes beyond its reasonable control (each a “Force Majeure” event). In the event of a delay in implementation and related services or other failure to perform obligations due to any Force Majeure event, the date or dates of performance of such services or obligations shall be extended for a period equal to the time lost by reason of the delay. If a party’s performance is affected by an event of Force Majeure, including Supplier’s payment obligation, it will promptly inform the other party and will use commercially reasonable efforts to fulfill its obligations under this Agreement and to remove or avoid any disability and mitigate any damages caused by such event of Force Majeure at the earliest time and to the greatest extent as is reasonably feasible.

12.10 Independent Contractors. The parties are independent contractors, and this Agreement shall not be construed to create any agency, fiduciary relationship, franchise, or partnership between them. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.

12.11 Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. This Agreement shall become effective when one or more counterparts have been signed by the parties hereto and delivered to the other parties, it being understood that the parties need not sign the same counterpart.

12.12 Electronic Signatures. Each party agrees that if it or any other party clicks for acceptance, draws, types or attaches its signature or any other text, symbol or image in a box or space associated with any Agreement or other terms and conditions, such party is agreeing to be legally bound by such terms and conditions. The parties agree that such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature.

Appendix A – Prohibits Products/Services

The following products and services are prohibited and may not be offered or sold on or through the Platform or otherwise in connection with the Supplier Services. 

• Products or content for which you do not hold proper license or intellectual property rights.

• Counterfeit goods.

• Any products restricted by our payment processing partners.

• Illegal or age restricted products such as: drugs and paraphernalia, alcohol, tobacco, vaping products, sexually-oriented or pornographic content.

• Regulated products such as: CBD, gambling, weapons, ammunition, pay to play auctions, sweepstakes, lotteries, donations, business-in-a-box, work-from-home, get-rich-quick schemes, etc.

• Regulated services such as: real estate, mortgage, lending, telemarketing, cellular/communication, door-to-door sales, bankruptcy, legal, merchant, debt-relief, collections, banking/financing, currency exchange, warranties, etc.

• Timeshares.

• Pharmacies, pharmaceuticals and nutraceuticals.

• Homework/Essay mills.

• Multi-level marketing, pyramid, or IBO schemes,

The current list of prohibited products and services is made available on the Platform and/or the Flowglad website and is incorporated into this Agreement by reference, as may be updated by Flowglad from time to time. This list may be modified at any time without notice, and all changes take effect immediately upon posting. Supplier is responsible for reviewing the then-current list on a regular basis.

Exhibit 1

Authorized User Terms of Service

PLEASE READ THESE TERMS OF SERVICE (THE “TERMS”) CAREFULLY BEFORE ACCEPTING THESE TERMS, UNDER WHICH YOU WILL BE AUTHORIZED TO USE THE SUPPLIER SERVICES PROVIDED BY FLOWGLAD LLC, A DELAWARE CORPORATION (“FLOWGLAD”). BY CLICKING “I ACCEPT” OR BY USING THE SUPPLIER SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY. THESE TERMS SET FORTH YOUR LEGAL RIGHTS AND OBLIGATIONS RELATED TO THE SUPPLIER SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, CLICK “I DO NOT ACCEPT” BELOW.

These Terms are a legal agreement between you and Flowglad and govern your use of the Flowglad Supplier Services as an authorized user of a supplier of Flowglad (the “Supplier”), which has signed a separate Supplier Agreement with Flowglad. Flowglad makes its services (the “Supplier Services”) available to its Suppliers and their authorized users. The Supplier Services are accessible through Flowglad’s designated website (“Website”) and platform (the “Platform”), subject to the following terms and conditions. Any rights not expressly granted herein are reserved by Flowglad.

Flowglad utilizes certain proprietary e-commerce software and SaaS services made available by Flowglad Inc. (the “Flowglad Software”) pursuant to an internal or third-party arrangement. Flowglad Inc. is not a party to these Authorized User Terms of Service and does not provide the Supplier Services, and your rights with respect to the Flowglad Software arise solely through Flowglad LLC’s provision of the Supplier Services under this Agreement.

Changes to Terms: Flowglad may update these Terms from time to time. You may be notified of such changes by email and/or Flowglad may require you to accept the new version of the Terms in order to continue accessing the Supplier Services. If you object to any changes in these Terms, you may discontinue your use of the Supplier Services.

In consideration of Flowglad’s provision of the Supplier Services and related services to Supplier, you agree with Flowglad as follows:

1. ACCESS TO SUPPLIER SERVICES AND MATERIALS. You will have access to the materials made available in the Platform and Supplier Services by Flowglad. You acknowledge and agree that the Supplier Services, Platform, Website, Flowglad Software, and other materials that may be made available as part of the Supplier Services may be modified and updated from time to time, in Flowglad’s sole discretion. Flowglad does not make any commitment to you that it will maintain particular functions, features or materials as part of the Supplier Services.

2. ACCEPTABLE USE TERMS. As a condition of your use of the Supplier Services (including the Website and Platform), you warrant to Flowglad that you will use the Supplier Services solely for the Supplier’s business purposes, and you will not use the Supplier Services or Flowglad Materials for any purpose that is unlawful or that is prohibited by these Terms. Without limiting this warranty, you specifically agree: (a) You will not use the Supplier Services in any manner which could damage, disable, overburden, or impair the Supplier Services or interfere with any other person’s, supplier’s, or customer’s use and enjoyment of the Supplier Services. (b) You will not obtain or attempt to obtain any materials or information on or through the Supplier Services through circumventing any access or use restrictions or by any other unauthorized methods, such as hacking or password mining. (c) You may not use any bots, spiders, page-scraping or other automated or manual processes or methods to copy or monitor the Supplier Services or any of its contents. (d) Any content or data you upload or input in the Supplier Services will not contain any obscene, immoral, libelous or unlawful material or any materials or instructions that may cause harm or injury, and will not violate any person’s right of privacy or any copyright, trademark, or other intellectual property rights. (e) You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any other way use or exploit any of the content of the Supplier Services or other Flowglad Materials other than for their authorized purposes. You will use Flowglad Materials solely for your own internal use, unless you’ve obtained the prior express written permission of Flowglad to authorize other users to access the Supplier Services or use such Flowglad Materials. (f) You will not delete or alter any proprietary rights or attribution notices in any content or Flowglad Materials obtained through the Supplier Services. (g) You agree that you do not acquire any ownership rights in any content provided by Flowglad, its licensors, or other third parties, or in any Flowglad Materials. We do not grant you any licenses, express or implied, to any Flowglad Materials except as expressly provided in these Terms, in connection with such content or materials, or as contained in a binding contract between you or the Supplier and Flowglad.

3. PERSONAL DATA AND PRIVACY. To operate the Supplier Services as intended, Flowglad collects and processes certain personal data. Please refer to Flowglad’s Privacy Policy, which is incorporated into and forms a part of these Terms, and informs users of our policies and practices related to collection, storage, processing, destruction, and other use of personal data. You understand and agree that no data transmissions over the Internet can be guaranteed to be 100% secure and that Flowglad cannot ensure or warrant the security of any information transmitted to us.

4. OWNERSHIP AND DATA USAGE RIGHTS. (a) All content and materials on the Website, Platform, or made available through the Supplier Services, including the Flowglad Software, text, graphics, logos and images (“Flowglad Materials”), are the property of Flowglad or its suppliers or licensors. All Flowglad Materials are protected by copyright and/or other laws that protect intellectual property and proprietary rights. You agree to comply with all copyright and other proprietary notices, legends or other restrictions applicable to any Flowglad Materials. (b) Any data, content, designs, data, information or materials you upload or post to the Supplier Services on behalf of the Supplier (“Supplier Data”) remain the property of the Supplier, subject to the rights of use contained in these Terms and Flowglad’s Privacy Policy. (c) The Supplier Services track metadata and other usage data related to your use of the Supplier Services (“Usage Data”) and shares such data with Flowglad. Flowglad shall own such Usage Data, other than the personal data incorporated therein. You agree that Flowglad shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Supplier Services and Flowglad’s products and services generally. Flowglad may retain and use Usage Data permanently. To the extent such Usage Data contains any individually identifiable data or personal data, Flowglad shall not sell or otherwise provide such Usage Data to any third party unless the data been anonymized (e.g., no name or address attached to the particular data) and/or aggregated with other users’ data, so that it is not identifiable as to any particular person. Notwithstanding the foregoing, Flowglad may share Usage Data in its original form as necessary or appropriate to provide services to the Supplier, to comply with legal obligations or to exercise its legal rights. (d) If you provide any suggestions, ideas or feedback to Flowglad (“Feedback”), Flowglad shall have a royalty-free, worldwide, irrevocable, perpetual license to use such Feedback and incorporate it into or use it to improve Flowglad’s products and services.

5. LINKS TO THIRD PARTY SITES. If you decide to access or use any third party websites linked to the Supplier Services, you do this entirely at your own risk.

6. TRADEMARKS. Flowglad’s name and its service marks, trademarks and logos, as well as any other Flowglad product and service names and logos displayed on the Website or Supplier Services, are registered trademarks or trademarks of Flowglad or its affiliates. The names of third party companies and their trademarks are the property of their respective owners and may also be trademarks. Flowglad’s trademarks may be used publicly only with prior written permission from Flowglad.

7. TERM AND TERMINATION. These Terms shall remain in force until terminated by either party. These Terms and your right to access to the Supplier Services automatically terminate, without notice to you, if Flowglad’s contract with the Supplier terminates or if your employment or engagement with the Supplier terminates. Either you or Flowglad may also terminate these Terms at any time, for any or no cause, by giving notice to the other party. Without limiting the foregoing, if you breach any of the terms of these Terms, Flowglad has the right, at its sole discretion and without prior notice, to suspend, modify, disable, or terminate your account or your use of the Supplier Services. Upon termination, you will no longer have access to the Supplier Services and the Supplier Data thereon, except as described in this subsection. The Supplier will have access to the Supplier Data in accordance with the terms of its agreement with Flowglad.

8. INDEMNIFICATION. You agree to indemnify and hold Flowglad harmless from and against any and all actions, suits, proceedings, losses, liabilities, damages, costs, and expenses (including attorneys’ fees) that Flowglad may incur or suffer in connection with any data or content input or uploaded to the Supplier Services, or by reason of the breach or alleged breach of any of your obligations under these Terms.

9. ASSIGNMENT. You may not allow others to use your Supplier Services account, and these Terms may not be assigned by you, without Flowglad’s prior written consent, which will not be unreasonably withheld. Flowglad may freely assign these Terms.

10. WARRANTIES AND DISCLAIMERS. FLOWGLAD WARRANTS THE SUPPLIER SERVICES SOLELY TO THE SUPPLIER. NO WARRANTIES ARE MADE TO YOU OR ANY OTHER USER OF THE SUPPLIER SERVICES ON A PERSONAL BASIS. EXCEPT AS SPECIFICALLY AGREED BY FLOWGLAD IN WRITING, THE SUPPLIER SERVICES AND OTHER FLOWGLAD MATERIALS ARE PROVIDED “AS IS” AND FLOWGLAD AND ITS LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. FLOWGLAD DOES NOT WARRANT THAT THE SUPPLIER SERVICES IS ENTIRELY ERROR-FREE. FLOWGLAD AND ITS LICENSORS’ TOTAL LIABILITY TO YOU FOR ANY CLAIM OR DAMAGE ARISING OUT OF THESE TERMS, INCLUDING ANY USE OF OR INABILITY TO USE THE SUPPLIER SERVICES OR OTHER FLOWGLAD MATERIALS, SHALL BE LIMITED TO DIRECT DAMAGES, WHICH SHALL NOT EXCEED THE TOTAL AGGREGATE AMOUNT OF $10. IN NO EVENT SHALL FLOWGLAD OR ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS, LOST DATA, INTERRUPTIONS OF BUSINESS, OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SUPPLIER SERVICES OR OTHER FLOWGLAD MATERIALS, REGARDLESS OF WHETHER FLOWGLAD HAS NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE. SOME JURISDICTIONS PROHIBIT CERTAIN LIMITATIONS OF DAMAGES IN CONSUMER CONTRACTS, SO THE ABOVE LIMITATIONS MAY BE SUPERSEDED BY LAW IN SOME JURISDICTIONS.

11. APPLICABLE LAWS. (a) Flowglad controls the Supplier Services from its offices in the United States of America. Flowglad makes no representation that the Flowglad Materials are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. Those who choose to access the Supplier Services from other locations do so on their own initiative and are responsible for compliance with applicable local laws. (b) You may not use or export the Flowglad Materials other than as permitted by the Supplier’s agreement with Flowglad. (c) These Terms shall be governed by the laws of the state of Delaware, excluding conflicts of laws rules. You consent to the exclusive jurisdiction and venue of courts in Delaware in all disputes arising out of or relating to these Terms. (d) Flowglad’s provision of the Supplier Services and other Flowglad Materials and services is subject to existing laws and legal process, and nothing contained in these Terms limits Flowglad’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Supplier Services, other Flowglad Materials, or Supplier Data.

12. MISCELLANEOUS. Except as otherwise specified herein, these Terms constitute the entire agreement between you and Flowglad with respect to the Supplier Services. Except for the Privacy Policy and any binding written contract between you and Flowglad, these Terms supersede all other prior or contemporaneous communications and understandings, whether electronic, oral or written, between you and Flowglad with respect to the Supplier Services. If any provision of these Terms is found void or unenforceable, all other provisions and terms shall remain in full force and effect. The failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.