Terms of Service
Tamadé Inc dba Flowly
Last Updated: November 20th, 2020
This Terms of Service Agreement (the “Agreement”) is a legally binding agreement between you and Flowly. We provide services listed on https://www.flowly.world/ (the “Website”) and through our mobile application (the “App”).
The terms “Flowly,” “us,” or “we” refers to Tamadé Inc. The term “you” refers to the user of the Services (as defined below).
If you are unsure as to the terms of this Agreement, please do not proceed further and contact us at firstname.lastname@example.org. If you do not agree to the terms of this Agreement, please do not use our Services, access our Website, or download our App.
PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
1. FLOWLY SERVICES
Flowly provides chronic pain and anxiety management tools through its App using biofeedback and virtual reality (the “Services”). Any new features added to or augmenting the Services is also subject to this Agreement.
2. TERRITORIAL RESTRICTION
The Website and the App are available for access, use, and download, as applicable, only in the United States of America (“U.S.”). If you are a resident of any other country other than the U.S., please do not use our Services, access our website, or download our App.
4. ELIGIBILITY & ACCESS RESTRICTIONS
To be eligible to use the Website, App and Services, you must meet the following criteria: (1) are 18 years of age or older; (2) are not currently restricted from accessing the Website, App and Services, or not otherwise prohibited from having an account, (3) are not our competitor, or are not using Website, App and Services for reasons that are in competition with us; (4) will only maintain one registered account at any given time; (5) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (6) will not violate any of our rights, including intellectual property rights such as patent, copyright, and trademark rights; and (7) agree to provide at your cost all equipment, browser software, and Internet access necessary to use the Website, App and Services .
a. Becoming a Member. You may sign up as a registered user of the Services free of charge (a “Member”). To become a Member you will need to provide us with the following information (the “Account Information”):
i. First Name
ii. Last Name
iii. Email Addresses
iv. Phone Numbers
v. Postal Address
ix. Date of Birth
You are responsible for keeping your account information and the associated password confidential.
By becoming a Member, you represent and warrant that you: (1) you are legally capable of entering into binding contracts; (2) all Account Information that you have provided is accurate; (3) you will maintain the accuracy of such information; and (iv) your use of the Services does not violate any applicable laws or regulations.
6. SERVICE LICENSE
Subject to your compliance with the terms of this Agreement, we grant you a limited, personal, non-exclusive, revocable, and non-sub licensable license to access and use the Website and Services.
If you access the Services via the App, we grant you a limited, non-exclusive, revocable, non-exclusive, non-sub licensable, and nontransferable license to: (a) download, install, and use the App for your use in accordance with this Agreement on any mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement, and (b) to access, stream, download and use on such Mobile Device content and Services made available in or otherwise accessible through the App, strictly in accordance with this Agreement.
If you access the Services through a Mobile Device, your wireless service carrier’s standard charges, data rates, and other fees may apply. Some or all of the Services’ functionality may not work with all carriers or mobile devices. By accessing the Services on a mobile device, you agree that we may communicate with you by push notifications, email or other electronic means to your Mobile Device and that certain information about your usage of the Services through the mobile device may be communicated to us. Further, to access our Services through the App or use our Website, you need to make sure that your Internet connection is adequate. You are solely responsible for the applicable charge rates, tariffs and other fees that might apply.
If you want to access, download, and use our App and Services, please go to your Google or Android Play Store or Apple App Store to download the App.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Website, App and Services, except as expressly permitted in this Agreement. The Website, App and Services are provided to you AS IS.
YOU AGREE THAT FLOWLY IS NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR USE OF OUR WEBSITE, APP, OR THE SERVICES. FLOWLY PROVIDES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO FLOWLY FOR THE ABILITY TO ACCESS THE WEBSITE, APP OR THE SERVICES.
7. ACCESS AND SERVICE RESTRICTIONS
You agree that the Services, including but not limited to the Website, App, graphics, trademarks, and editorial content, contain proprietary content, information and material, are owned by Flowly and/or its licensors, including our customers, brands and agencies, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of the Services or in any manner that is inconsistent with the terms contained in this Agreement.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you will not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, Trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Flowly is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the Services.
8. RESERVATION OF RIGHTS
You acknowledge and agree that the Website, App or the Services are provided for your use, and not sold to you. Except to the extent necessary to access and use the Website, App or the Services, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to the Website and the Services whether expressly, by implication, estoppel or otherwise. Flowly and its licensors and service providers reserve and will retain their entire right, title, and interest in and to the Website and the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
9. MEDICAL DISCLAIMER
a. Flowly is a provider of online tools for chronic pain and anxiety management. We are not a health care or medical device provider, nor should our Services be considered medical advice. Only your physician or other health care provider can do that. While there is third party evidence from research that chronic pain and anxiety can be managed by using tools based on biofeedback and virtual reality, Flowly makes no claims, representations or guarantees that the Services provide a therapeutic benefit.
b. Any advice or other materials in the Services are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on your individual condition and circumstances. The advice and other materials we make available are intended to support the relationship between you and your healthcare providers and not replace it. We are not liable or responsible for any consequences of your having read or been told about such advice or other materials as you assume full responsibility for your decisions and actions. In particular, to the fullest extent permitted by law, we make no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published as part of the Service.
10. USER DO’S AND DON’TS
As a condition to access the Website, App or the Services, you agree to this Agreement and to strictly observe the following Do’s and Don’ts:
i. Comply with all applicable laws, including, without limitation, tax laws, export control laws and regulatory requirements;
ii. provide accurate information to us and update from time to time as may be necessary;
iiii. review and comply with notices sent by us, if any, concerning the Services.
i. Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, otherwise transfer or commercially exploit the Website, App or the Services (excluding any user content);
ii. Reverse engineer, decompile, disassemble, decipher, capture screen shots, or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Website, App, or the Services, or any part thereof;
iii. Utilize information, content or any data you view on and/or obtain from the Website, App or the Services to provide any service that is competitive with us;
iv. Imply or state, directly or indirectly, that you are affiliated with or endorsed by us unless you have entered in to a written agreement with us;
v. Adapt, modify or create derivative works based on the Website, App, or the Services or technology underlying the Website, App, or the Services, or other users’ content, in whole or in part;
vi. Rent, lease, loan, trade, sell/re-sell access to the Website, App, or the Services or any information therein, or the equivalent, in whole or part;
vii. Deep-link to the Website, App, or the Services for any purpose, i.e. including a link to our proprietary web pages other than our home page;
viii. Access, reload, or “refresh” or make any other request to transactional servers that are beyond generally accepted usage of web-based applications;
ix. Use manual or automated software, devices, scripts robots, other means or processes to access “scrape”, “crawl” or “spider” any web pages contained in the site;
x. Use automated methods to add contacts or send messages;
xi. Engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of our Websites;
xii. Attempt to or actually access the Website, App, or the Services by any means other than through the interface provided by us;
xiii. Attempt to or actually override any security component included in or underlying the Website, App, or the Services;
xiv. Engage in any action that interferes with the proper working of or places an unreasonable load on our infrastructure, including but not limited to unsolicited communications, attempts to gain unauthorized access, or transmission or activation of computer viruses;
xv. Remove any copyright, trademark or other proprietary rights notices contained in or on the Website, App, or the Services, including those of both Flowly or any of its licensors; or
xvi. Use any information obtained from the Website, App, or the Services to harass, abuse or harm another user;
11. USER GENERATED CONTENT
a. Our App or Services may allow you to submit materials to us, including but not limited to comments, forum messages, text, video, audio and photographs (“User Generated Content”).
b. You represent to us that you have all the necessary legal rights to upload, post, or submit User Generated Content and that such User Generated Content will not violate any law of the rights of any person. In addition to the obligations in Section 10 above, you shall not upload to, or distribute or otherwise publish on to the App or the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material. You shall not impersonate anyone else or otherwise misrepresent your identity, affiliation or status. You agree not to provide material and misleading information knowingly and with intent to defraud. You shall not upload to, or distribute or otherwise publish on to the Services any malware, viruses, spyware, or other malicious software or files to the Services. You shall not use automated means to upload to, or distribute or otherwise publish onto, the Services any content. You agree that you will not threaten or verbally abuse other userd, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or “spam.” Violation of this Section 11(b) is grounds for immediate and permanent suspension of access to our App and Services.
c. You grant Flowly a perpetual, nonexclusive, world-wide, royalty-free, sub-licensable license to the User Generated Content, which includes without limitation the right for Flowly, or any third party it designates, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, communicate to the public, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed, any User Generated Content posted by you on or to the App or the Services or any other website owned by Flowly, including any User Generated Content posted on or to the App or the Services through a third party.
d. You are solely responsible for your User Generated Content. However, while Flowly does not and cannot review every User Generated Content and is not responsible for the content of these messages, Flowly reserves the right to deleted, move, or edit User Generated Content that Flowly in its sole discretion, deems abusive, defamatory, obscene, in violation of copyright or trademark laws, in violation of these Terms of Service, or otherwise unacceptable.
e. By uploading User Generated Content, you are consenting to its display and publication on the App and the Services and any related online and offline promotional uses.
12. FLOWLY COMMUNICATIONS
You understand and agree that you may receive information and push notifications from Flowly via email or through the App. You hereby consent to receive communications via the App, text message, or for calls to your mobile number.
2. Push Notification. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of the Website, App, and Services.
13. ACCOUNT REGISTRATION
When you first sign up for a Subscription you may be required to agree to a specific price and plan, which may include a commitment period term of one or more years (“Commitment Period”). We encourage you to maintain your Subscription for the applicable Commitment Period. The price available with your plan is valid until the Commitment Period expires, at which time your Subscription will automatically continue on a month-to-month basis at the then-existing non-promotional price for your Subscription level.
Flowly may offer additional promotions or discounts related to Subscriptions from time to time. Please read the details of those offers carefully, as any additional terms presented to you during the sign-up process will form part of these Purchase and Subscription Terms. Unless specified in writing, all discount offers that require a payment are non-refundable, and all free months offered are in addition to the Commitment Period. Any free trial or other promotion must be used within the specified time frame of the trial or promotion. You may be required to have a valid payment method on file in order to initiate a free trial; if you do not cancel before your free trial period ends, your account will be converted to a paid Subscription and will be charged in accordance with these Purchase and Subscription Terms.
14. FLOWLY KIT DEPOSIT
If you select the Flowly Pro Subscription Trial, Flowly will ship you a Flowly Kit including a Virtual Reality headset and Biofeedback Heart Rate Sensor, Flowly will collect and hold a security deposit (“Deposit”) for the duration of the Commitment Period. In order to be eligible for a full return of the Deposit, you must request a return label from Flowly by email (email@example.com) and send us the Flowly Kit using the prepaid postage supplied by Flowly, along with all parts and equipment provided to you (such as the charger, screen cleaning cloth, or any other Flowly Kit accessories you received as part of the membership) with the Flowly Kit. The Flowly Kit must be clean, undamaged, and fully functional. Once Flowly receives the Flowly Kit and inspects it to ensure the above conditions are satisfied, we will release your Deposit to the payment form provided to Flowly at checkout. If you satisfy the above conditions, we will notify you within 3 business days of receiving the Flowly Kit that we have processed your Deposit return. If you update your payment information, do not return the Flowly Kit in the manner described in this Section, you may be delayed in receiving your Deposit back. Instead, email Flowly and mention you changed your payment information.
We reserve the right to keep all or a portion of the Deposit in the event that you do not return the Flowly Kit to us in the manner described in these Terms.
15. MEMBERSHIP STRUCTURE AND FEES
Your Flowly Subscription recurs on a monthly or annual basis at the then-current rate until cancelled. Billing occurs at the beginning of the Subscription cycle. To change or terminate your Subscription, contact firstname.lastname@example.org.
You shall indemnify, defend and hold Flowly and our officers, employees, managers, directors, customers and agents (the “Flowly Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Flowly Indemnified Parties arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, gross negligence or willful misconduct of you or your employees, agents or contractors; (iii) incorrect information provided by you in your account or elsewhere ; or (iv) a failure by you or your employees, agents, contractors or invitees to comply with applicable laws and regulations.
17. DISCLAIMERS OF WARRANTIES
Your access to and use of the Website, App or the Services or any content are at your own risk. You understand and agree that the Website, App or the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, FLOWLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Flowly makes no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Website, App orthe Services or any content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Website, App or the Services or any content; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by the Services; and (iv) whether the Website, App or the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Flowly or through the Website, App or the Services, nor will they create any warranty or representation not expressly made herein.
18. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLOWLY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE WEBSITE, APP OR THE SERVICES; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICES; OR (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FLOWLY EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID FLOWLY, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT FLOWLY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOU AND (IF APPLICABLE) YOUR PERSONAL REPRESENTATIVE, KNOWINGLY AND FREELY ASSUME ALL RISK WHEN ACCESSING THE WEBSITE, APP OR the Services. YOU, ON BEHALF OF YOURSELF, AND (IF APPLICABLE) YOUR REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY FLOWLY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE WEBSITE, APP OR THE SERVICES (II) YOUR USE OF THE WEBSITE, APP OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM THE USE OF THE WEBSITE, APP OR THE SERVICES , (III) VIOLATION OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, YOUR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES, (IV) CLAIMS, OR ANY DECISION BY A COURT, ARBITRATOR, OR GOVERNMENT AGENCY, THAT FLOWLY IS OBLIGATED TO PAY ANY WITHHOLDING TAXES, SOCIAL SECURITY, UNEMPLOYMENT OR DISABILITY INSURANCE OR SIMILAR ITEMS IN CONNECTION WITH ANY PAYMENT RECEIVED BY YOU UNDER THE TERMS, (V) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY RIGHT OF PRIVACY OR INTELLECTUAL PROPERTY RIGHTS, (VII) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (VIII) YOUR WILLFUL MISCONDUCT, OR (IX) ANY OTHER PARTY’S ACCESS AND USE OF THE SERVICE WITH YOUR UNIQUE USERNAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
You may terminate this binding legal Agreement with Flowly at any time by deactivating your account and/or discontinuing use of the Website, App and/or the Services.
Sections 7-9, 12 to 23 shall survive any termination or expiration of this Agreement.
20. COPYRIGHT INFRINGEMENT/DMCA NOTICE
If you believe that any content on our Website violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent. It is our policy to terminate the accounts of repeat infringers.
Your physical or electronic signature;
Identification of the copyrighted work(s) that you claim to have been infringed;
Identification of the material on our Services that you claim is infringing and that you request us to remove;
Sufficient information to permit us to locate such material;
Your address, telephone number, and e-mail address;
A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The Flowly Copyright Agent to receive the DMCA Takedown Notices is Copyright Manager, Tamadé Inc; Attn: DMCA Notice, 1800 Loma Vista St. Pasadena, CA 91104. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
This Agreement is only for your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
22. ANTI-BRIBERY AND EXPORT COMPLIANCE
You agree not to promote, approach or use, distribute, transfer, provide, sub-license, share with, or otherwise offer the Services in violation of any Laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”)the Services to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation.
We reserve the right, at our sole discretion, to change or modify this Agreement at any time. In the event, we modify the terms of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. We will inform you about the modifications via email or comparable means within 15 days of making such a modification a reasonable time period. We will also post the modified version on this page. Your continued use of the Website, App or the Services shall constitute your consent to such changes.
24. RELATIONSHIP OF PARTIES
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, agent/servant. The User has no power or authority to bind Flowly to any obligation, agreement, debt or liability. The User shall not hold itself out as an agent or representative of Flowly.
25. GOVERNING LAW
This Agreement shall be governed by the law of the State of California, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California, for any actions not subject to Section 23.
26. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. Application. You and Flowly agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 23 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
b. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at email@example.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Flowly, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
c. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in Section 23 (g) below) subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including this Agreement’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of Flowly Services, App, or Website shall be finally settled by binding arbitration administered by the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS”). The JAMS rules will govern payment of all arbitration fees. Flowly will pay all arbitration fees for claims less than $75,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. Flowly will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
d. Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
e. Filing a Demand. To start an arbitration, you must do the following: (i) Write a Demand for Arbitration (“Demand”) that (a) briefly explains the dispute, (b) lists your and Flowly’s names and addresses, (c) specify the amount of money in dispute, if applicable, (d) identify the requested location for a hearing if an in-person hearing is requested, and (e) state what you want in the dispute; (ii) send one copy of the Demand to JAMS, along with a copy of these Terms and the filing fee required by JAMS; and (iii) Send one copy of the Demand for Arbitration to us at firstname.lastname@example.org.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in San Francisco County, California, United States, and you and Flowly agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
f. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FLOWLY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
g. Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in San Francisco, California for disputes or claims within the scope of that court’s jurisdiction.
h. 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to email@example.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Service or within 30 days of changes to this section being announced on the Website or App. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Flowly also will not be bound by them.
i. Changes to This Section. FLOWLY will provide thirty (30) days’ notice of any changes to this section by posting on the Services, Website, or App. Amendments will become effective thirty (30) days after they are posted on the Services, Website, App, or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services, Website, or App.
j. Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services, Website, or App.