Flute Terms of Service

1 Acceptance of Terms & Usage of Flute Solutions.

1.1 You accept these Terms when you click to accept these Terms and otherwise by continuing to use any Flute Solution. Your acceptance of these Terms creates an enforceable contract between you and Flute. You cannot use the Flute Solutions if you do not accept the Terms. When you accept the Terms on behalf of your business, you represent to Flute that you have the authority to use Flute Solutions and to accept these Terms.

1.2 Upon your acceptance of these Terms, you will be required to provide Flute with the applicable information to create a “Flute Account,” which may be a general account for using digital products in conjunction with your commercial use of Flute’s services or may be a Flute Digital Sandbox Account for use of the Flute Digital Sandbox, which is a Flute Solution.  If you create a Flute Digital Sandbox Account, it will be governed by additional terms set forth in Sections 25 through 29 below. You shall provide Flute with accurate, current, and complete information about you and your business (“Account Information”) and update your Account Information promptly after any changes. You will be provided login credentials, which may include a user name, account number, password, and other methods of user authentication such as security questions and answers, and other login details or information used by you to use or access the Flute Account (“Account Credentials”) Flute may terminate your Flute Account and your access to Flute Solutions if your Account Information is inaccurate or incomplete. You are solely responsible for keeping your Account Credentials confidential and for all activities that occur on your Flute Account as a result of any use of such Account Credentials, including all unauthorized activities. Flute is entitled to act on instructions received by us if correct Account Credentials are provided.

1.3  Age Requirements and Representative Liability.

Only individuals and businesses whose representatives are 18 years of age or older (or the age of majority in their jurisdiction, whichever is greater) may create a Flute Account and use Flute Solutions. If you or your authorized representative is not 18 years of age or older (or the age of majority where you reside):

(a) You must add a representative who is an adult (which may be a parent, legal guardian, or other authorized person with legal authority) to your Flute Account;

(b) Both you and your representative agree to be bound by these Terms; and

(c) Your representative agrees to be personally responsible and liable for your actions and omissions in connection with your Flute Account and your compliance with these Terms.

2. Grant of License.

Flute grants you a personal, limited, non-exclusive, revocable, non-transferable license to access and use Flute Solutions pursuant to these Terms and pursuant to any separate agreements with Flute governing your use of the Flute Solutions.

3. Restrictions.

You shall not, and shall not permit any third party to:

1. access or attempt to access Flute Solutions (or any part) that is not intended to be available to you;
 
2. provide access to, or use of, Flute Solutions (in any form, in whole or in part) to any third party through any time-sharing service, service bureau, network, consortium, or other means, or otherwise resell or redistribute the information you receive through Flute Solutions to any third parties;

3. perform or attempt to perform any actions that would interfere with the proper working of Flute Solutions, prevent access to or use of Flute Solutions by other users, or impose a large load on Flute’s infrastructure, network capability or bandwidth;

4. without Flute’s express written consent, use, ship, or access Flute Solutions (or any part) outside or from outside of the United States;

5. use Flute Solutions except as permitted in these Terms without the express written consent of Flute;
6. use, disclose or retain any information obtained from Flute Solutions in a manner that violates our Privacy Policy or the privacy policy that you post;
7. share your Account Credentials with anyone other than your authorized employees;
8. use the Flute Solutions in any manner that violates Applicable Laws (as defined in Section 14.2 below;
9. benchmark Flute Solutions against other solutions or develop a competitive solution; 
10. facilitate any activities that are unlawful, fraudulent, coercive, defamatory, violate the rights of individuals or otherwise harass or degrade individuals; 
11. decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover by any means any source code, underlying ideas or algorithms of the Flute Solutions, (or any part), except to the extent that such restriction is expressly prohibited by law; 
12. modify, translate, or alter in any manner, the Flute Solutions (or any part) or the Marks (as defined in Section 12.1 below); 
13.  create derivative works of or based on the Flute Solutions (or any part) or the Marks; 
14. except for backup and archival purposes as expressly consented to by Flute, directly or indirectly copy the Flute Solutions (or any part); 
15. republish, upload, post, transmit, disclose, or distribute (in any format) the Flute Solutions (or any part), except as permitted in these Terms; 
16. remove, relocate, or otherwise alter any proprietary rights notices from the Flute Solutions (or any part) or the Marks; or
17. use any robot, spider, site search, or other retrieval application or device to scrape, retrieve, or index services provided by Flute, or to collect information about users for any unauthorized purpose.

4. Equipment and Connectivity.

• 4.1 You may access Flute Solutions through equipment that is identified by Flute as compatible with and capable of accessing and/or supporting Flute Solutions through the use of wired and/or wireless connection(s) to the Internet and/or any other standard industry acceptable means for gathering, storing, managing and/or communicating data for the provision of services for Flute Solutions. You are solely responsible for the payment of any and all fees that may be imposed by your Internet/data services provider. Your use of Flute Solutions is subject to: (a) the terms of any agreements you have with your Internet/data services provider; and (b) availability, transmission range and uptime of the services and any equipment for the provision of services for Flute Solutions.
• 4.2 Flute Solutions do not function with all equipment. In Flute’s sole and absolute discretion and from time to time, Flute may modify the equipment that is deemed approved as compatible with Flute Solutions

5. Communicating with Customers.

You must promptly comply with any customer’s opt-out requests in their entirety. You may not use Flute Solutions to send marketing communications, except to the contact information provided directly to you by the consumer and with the proper consumer consent as required by Applicable Laws.

6. Third Party Solutions.

6.1 Flute Solutions may contain links to services, products or promotions that are provided by third parties, not Flute (“Third Party Solutions”). If you decide to use Third Party Solutions, you will be responsible for reviewing, understanding, and complying with the terms and conditions associated with such Third Party Solutions.  Flute uses certain Third Party Solutions to deliver services to you.  By using Flute, you authorize the providers of such Third Party Solutions to collect, process, and use information as described in our Privacy Policy and the respective terms and privacy policies of such providers.

6.2 Flute may use a provider of a Third Party Solution to collect and process information about your business, payment processing activity, settlement flows, linked bank accounts, and transition history in order to assist with on-boarding you as a customer and provide certain other services.  Currently, Jaris, Inc. may provide certain on-boarding services that require this information pursuant to agreements between Flute and Jaris, Inc., and where applicable, directly with you.

6.3 While Third Party Solutions may interface or function with Flute Solutions, you however acknowledge and expressly agree that these Third Party Solutions are not deemed Flute Solutions. You may be required to enter into agreements with providers of Third Party Solutions in order to use such Third Party Solutions. You are solely responsible for your compliance with such agreements, your use of Third Party Solutions, and any associated fees or charges. 6.4 Your access to, download of, or otherwise obtained content through your use of Third Party Solutions is at your own risk. Flute will not be responsible or liable for any actions or any failures to act of any third party and expressly disclaims any and all liability related (directly or indirectly) to any Third Party Solutions. Flute does not warrant, endorse, guarantee, or assume responsibility or liability for any provider of a Third Party Solutions that are directly or indirectly advertised or offered through Flute Solutions or any hyperlinked website or service, third party app store, Flute’s websites or digital offerings (or any sub domains) or featured in any banner or other advertising. Flute will not be a party to or in any way monitor any transaction between you and providers of Third Party Solutions.

7. Maintenance.

7.1 Flute may perform maintenance on Flute Solutions, which may result in service interruptions, delays, or errors. Flute will not be liable for any such interruptions, delays, errors, or bugs. Flute may contact you to assist you with Flute Solutions and obtain information needed to identify and fix any errors.

7.2 Flute may release enhancements, improvements, or other updates to Flute Solutions. You shall integrate and install any update into your systems within 30 days of your receipt of notice from Flute that such actions by you are required. Failure to install any updates in a timely fashion may impair the functionality of Flute Solutions. Flute will have no liability for your failure to properly install the most current version of any update, and Flute will have no obligation to provide support or services for any outdated versions.

7.3 Certain software can automatically install, download, and/or deploy updated and/or new components, which may include a new version of the software itself. In no event shall you directly or indirectly prevent, in any event or in any manner, or interfere with these processes. You agree to assume full responsibility and to indemnify Flute for all damages and losses of any nature for all adverse results or third-party claims arising from your interference with such processes.

7.4 Modifications and Discontinuation of Services. 

Flute may modify or discontinue any aspect of Flute Solutions, including imposing new conditions on use, limiting features or functionality, or ceasing to offer Flute Solutions (or any part thereof) in specific locations or entirely. Flute will provide you with reasonable advance notice if such modification or discontinuation would materially reduce the functionality of Flute Solutions that you are then using, except where Flute determines that providing such notice would (a) create a security or fraud risk for Flute, its affiliates, or its other customers; or (b) cause Flute to violate Applicable Laws or breach an obligation to a governmental authority, card association, or third-party service provider. Flute shall have no liability for any such modifications or discontinuations.

8. Fees.

8.1 Fee Obligations.  For your use of Flute Solutions, you agree to pay the applicable fees and all applicable taxes, duties, or other governmental assessments based on your use of Flute Solutions as set forth in these Terms or your applicable agreement for Flute Solutions. Unless otherwise expressly stated in these Terms, your applicable Flute Solutions agreement, or as required by Applicable Laws, payment obligations are non-cancelable and fees paid are non-refundable.  Unless otherwise expressly stated in these Terms or your applicable Flute Solutions agreement, Flute may change the fees related to the provision of services for Flute Solutions (including verified third-party pass-through costs), and in such case, will promptly provide you with commercially reasonable notice. If you dispute any amounts you are charged, you must notify Flute in writing within 30 days of incurring the charge that you dispute, unless otherwise expressly provided for in another applicable agreement. For avoidance of doubt, if you notify Flute after 30 days, you agree Flute has no obligation to affect any adjustments or refunds.

8.2 Collection of Fees and Other Amounts.

1. You must pay, or ensure that Flute is able to collect, all fees, taxes, and other amounts you owe to Flute under these Terms or any other agreement with Flute when due.
2. Flute may collect all amounts owed by you by (i) deducting them from any amounts Flute owes to you; (ii) charging any payment method you have provided to Flute; (iii) invoicing you for those amounts; or (iv) debiting any bank account you have authorized Flute to debit.
3. If Flute is unable to collect any amounts due, or if any account balance you maintain with Flute is negative or does not contain funds sufficient to pay the amounts due, then Flute may, to the extent permitted by Applicable Laws, deduct, recoup, or setoff these amounts from (i) any reserve account (if applicable); (ii) funds payable by Flute to you; (iii) any account balance; (iv) any bank account you have authorized Flute to debit; or (v) any backup payment method you have provided.
4. If you are liable for any amounts owed to Flute under these Terms, you are also liable for all costs and expenses incurred by Flute (and its affiliates, agents, and representatives) in collecting those amounts. Such collection costs include reasonable attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, applicable interest, and any other related costs.
5. If Flute believes it transferred funds to you in error, Flute may deduct, recoup, or setoff those funds in accordance with this Section 8.2.

8.3 Fee Changes and Waivers.

Your continued use of Flute Solutions after the effective date of any fee change constitutes your acceptance of the new fees.

Subject to Applicable Laws, Flute may revise the fees for Flute Solutions at any time. Flute will provide you with at least 30 days' notice (or such longer period as required by Applicable Laws) of any increase in fees or any new fees for Flute Solutions provided to you.

Flute may offer Flute Solutions without charge or waive fees for Flute Solutions, and Flute may subsequently start charging fees for such Flute Solutions upon at least 30 days' notice (or such longer period as required by Applicable Laws) to you. Taxes may still apply to previously waived fees.

9. Term and Termination.

9.1 Your obligations under these Terms will continue for the longer of (a) your use of Flute Solutions, (b) until you or we terminate your Flute Account by giving the other 30 days’ notice, or (c) as otherwise provided in these Terms or other applicable agreement as expressly stated thereunder.

9.2 Notwithstanding anything herein to the contrary, Flute may immediately suspend your access to Flute Solutions without notice or liability if:

1. Flute reasonably believes that providing Flute Solutions to you will cause Flute or you to violate any Applicable Laws;
2. you become insolvent, make an assignment for the benefit of creditors, file for bankruptcy protection, or have a receiver appointed over your assets;
3. you breach these Terms or any other agreement between you and Flute;
4. Flute reasonably believes your activity degrades, or may degrade, the security, privacy, stability, or reliability of Flute Solutions or any third party's systems;
5. Flute reasonably believes you are engaged in, or your activity enables or facilitates, any business or activity that may be unlawful, fraudulent, or harmful to a third party, or otherwise presents an unacceptable risk to Flute;
6. Flute reasonably believes your activity increases, or may increase, the rate of fraud or chargebacks;
7. you do not promptly respond to Flute's request for information or documentation; or
8. you do not promptly integrate and install updates as required by Section 7.2.

9.3 Flute may permanently terminate or otherwise refuse to permit your access to Flute Solutions for any reason listed in Section 9.2 above, or for any other reason in Flute's sole determination, including if Flute determines you violate any provision of these Terms. Flute will provide notice of termination in accordance with Applicable Laws but is not required to provide advance notice.

9.4 Upon termination of these Terms for any reason, you must immediately stop using Flute Solutions, and your license to use Flute Solutions provided under these Terms will immediately expire. Subject to the foregoing sentence and Applicable Laws and card association rule requirements, Flute will delete Account Data (defined below) that is stored on Flute’s servers upon your termination of these Terms, and Flute will not be liable to you or any third party for termination of access to Flute Solutions or deletion of your Account Data.9.5 The rights, obligations, and limitations in these Terms that by their nature should survive shall survive termination of these Terms, including Sections 1.1, 3, 6, 8, 9.4, this 9.5, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22, 23, 27, 28 and 29.  Unless otherwise expressly stated, termination of these Terms will not affect any other agreement between you and Flute or Flute's affiliates.

10. Privacy Policy.

For information on how we protect your personal information, please read our Privacy Policy at flute.com/privacy which is hereby incorporated into these Terms. This policy explains how we treat your information when you access and use the Services.

11. Protecting Information.

11.1 You agree to hold all non-public information that Flute supplies or otherwise makes accessible to you (“Confidential Information”) in strict confidence and to not disclose or use the Confidential Information for any purpose except in connection with your exercise of rights and performance of obligations under these Terms. You may disclose Confidential Information to other employees of your employer who have a bona fide need to know to the extent necessary to evaluate the Flute Solutions, provided that each such other employee is bound by confidentiality obligations no less stringent than those set forth in these Terms. You agree to ensure the protection of Confidential Information from unauthorized disclosure and, in any event, to take precautions at least as great as those taken to protect your own information of a similar nature, but in no event less than a reasonable degree of care. You acknowledge that breach of this Section 11.1 may result in irreparable harm to Flute, for which money damages may be an insufficient remedy, and therefore Flute will be entitled to seek injunctive relief to enforce the provisions of this section without requirement of posting a bond or providing special evidence.

11.2 You may disclose Confidential Information if required by court order, governmental demand, or other compulsory legal process, provided that, if legally permitted to do so, you first promptly notify Flute, delay disclosure in order to afford Flute an opportunity to seek a protective order or other relief, provide reasonable cooperation with respect to any such efforts by Flute, and limit any disclosure solely to the extent legally required.   

11.3 At Flute’s request, you shall return to Flute or destroy all of Flute’s Confidential Information in your possession or control immediately upon your receipt of such request.

11.4 You are required to utilize best industry practices to prevent unauthorized access to and use of any of your information or data provided to, used with, or stored in, or by, the Flute Solutions (collectively, “Account Data”).  You are solely responsible for ensuring the confidentiality protection of your Account Credentials and the security of Account Data residing on server(s) or other systems owned or operated by you or a third party designated by you. You are responsible for all electronic communications that contain Account Data that is sent to Flute (or to any third party) and for all uses of the Flute Solutions in association with your Account Data regardless of whether such communications were authorized by you.   

11.5 Data Breach Notification. 

You must notify Flute immediately (and in no event later than 24 hours after discovery) if you become aware of any unauthorized acquisition, access, modification, disclosure, or loss of any personal data, customer data, payment card data, Account Credentials, or Account Data that could reasonably impact Flute's provision of Flute Solutions. Such notification must include all details reasonably available to you regarding the nature and scope of the data breach.  Flute reserves the right to deny you access to the Flute Solutions, in whole or in part, if Flute believes that any loss, theft or unauthorized use of any Account Data or access information has occurred.

12. Intellectual Property.

12.1 All right, title and interest in and to all Confidential Information, Marks, and Intellectual Property Rights embodied by Flute Solutions (including all software and any updates, changes, alterations, or modifications to or derivative works thereof) shall be and remain, as between Flute and you, the sole and exclusive property of Flute. All right, title and interest associated with the Flute Solutions not expressly granted by Flute in these Terms are deemed withheld. You may not use Marks in any manner, including in any advertisements, displays, or press releases, without Flute’s prior written express consent. “Marks” are Flute’s names, logos, emblems, brands, service marks, trademarks, trade names, taglines, and any and all other proprietary designations. “Intellectual Property Rights” means patents, copyrights, trade secrets, design rights, data rights, mask work rights, moral rights, trademarks and any other intellectual property rights anywhere in the world, and registrations and applications for any of the foregoing.  

12.2 If Flute provides you with copies of or access to any software or documentation, then, unless otherwise expressly stated in writing, such software and documentation are provided on a personal, non-exclusive, non-transferable, non-assignable, revocable limited license for the period of your authorized usage of Flute Solutions and solely for you to access and use the software and documentation in order for you to use Flute Solutions for its intended purpose(s).

12.3 You shall not take any action that is contrary with the expressed stated purpose(s) of this Section. You will not file any action, in any forum that challenges the ownership of any part of the Flute Solutions, any related software, materials or documentation. Failure to comply with this provision will constitute a material breach of these Terms and consequently may lead to immediate termination of your usage of Flute Solutions.

12.4 Feel free to contact us regarding any comments, suggestions, feedback or ideas about the Flute Solutions, including improvements to Flute Solutions, (“Feedback”) by using the Flute contact information provided herein. If you provide any Feedback to Flute, you grant to Flute and its affiliates a perpetual, worldwide, non-exclusive, irrevocable, royalty-free, sublicensable license to use that Feedback for any purpose without restriction or obligation to you and acknowledge that Flute will hold no confidentiality obligations, including use or disclosure restrictions, with respect to such Feedback. If you provide Flute with any content or other materials relating to such Feedback, you represent and warrant that you have obtained all necessary rights and permissions to share such content or materials to Flute, and that any information contained therein constitutes Feedback under this paragraph.12.5 As a condition to granting you access and permission to use Flute Solutions, you, on behalf of yourself and your affiliates, hereby agree not to assert, authorize, assist, or encourage any third party to assert, against Flute or any Flute affiliates, customers, vendors, business partners or licensors associated with the Flute Solutions, any patent infringement claim regarding the Flute Solutions or any portion, functionality or other characteristics thereof.

13 Flute Solutions Disclaimer.

YOUR USE OF FLUTE SOLUTIONS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, FLUTE SOLUTIONS ARE PROVIDED “AS IS”. FLUTE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  FLUTE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, FREEDOM FROM MALWARE, TITLE, OR ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE FLUTE SOLUTIONS WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.  FLUTE DOES NOT WARRANT THAT THE FLUTE SOLUTIONS ARE ERROR-FREE, COMPLETE, OR ALWAYS TIMELY, OR THAT OPERATION OF THE FLUTE SOLUTIONS WILL BE SECURE OR UNINTERRUPTED, NOR DOES FLUTE GUARANTEE ANY RESULTS.  THE INFORMATION PROVIDED BY FLUTE SOLUTIONS IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL, FINANCIAL, TAX, OR PROFESSIONAL ADVICE.  YOU SHOULD NOT RELY ON THIS INFORMATION AS THE SOLE BASIS FOR MAKING FINANCIAL, LEGAL, OR OTHER DECISIONS, AND RELIANCE ON SUCH INFORMATION IS AT YOUR OWN RISK.  

YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FLUTE TO ANY OTHER THIRD PARTY.

SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT FLUTE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAWS, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

14. Your Responsibilities.

14.1 You shall at all times comply with any operating procedures, requirements, or guidelines regarding your use of Flute Solutions.

14.2 You shall comply with the requirements of any and all applicable federal, state and local laws, regulations, rules of any payment card network or payment system, any other applicable rules, directives or guidance from governmental entities, payment card networks or applicable payment systems, or any other legal requirements or standards that are related to the use of Flute Solutions, including to those related to your use and provision of any cardholder data, customer information or other point of sale data accessed or provided in connection with the Flute Solutions, those related to you obtaining any required consent when collecting and using customer contact details to communicate with your customers through Flute Solutions, and those related to your compliance with any tax laws and regulations as result of the provision of services for Flute Solutions (collectively, “Applicable Laws”). 

14.3 You shall use the Flute Solutions only in the manner permitted in these Terms or your applicable Flute Solutions agreement(s). You shall not use the Flute Solutions (collectively or any part) for any illegal purposes.

14.4 You are solely responsible for: (a) obtaining all required permits, consents, and licenses; (b) monitoring legal developments applicable to your usage of Flute Solutions and the operation of your business: (c) interpreting Applicable Laws and determining your requirements for compliance with all Applicable Laws; and (d) maintaining an ongoing compliance program.

14.5 You are solely responsible for ensuring the accuracy, quality, integrity, legality and appropriateness of all information and data regarding your business that you provide to Flute or its service providers in connection with Flute Solutions. In addition, as applicable, you are solely responsible for verifying all information and data that are loaded on to Flute Solutions equipment (or its service providers) are accurate prior to your usage of such equipment and/or Flute Solutions. Flute and its service providers disclaim any and all liability arising out of any inaccuracies with respect to any information or data that you provide.14.6 By accessing and using services for Flute Solutions, you hereby agree to the applicable respective terms and services of Apple and Google.

15. Limitation of Liability and Damages.

15.1 Neither Flute nor its affiliates, directors, officers, employees, agents, or subcontractors will be liable under any theory of tort, contract, or other legal theory for (a) lost profits, lost revenues, or lost business opportunities, or (b) exemplary, special, punitive, incidental, indirect, or consequential damages arising out of or related to these Terms or your applicable agreement for Flute Solutions (unless otherwise expressly stated to the contrary in your applicable agreement for Flute Solutions), each and every one of which is excluded by agreement of you and Flute, regardless of whether such damages were foreseeable or whether any person has been advised of the possibility of such damages. Unless otherwise expressly stated to the contrary in your applicable agreement for Flute Solutions, Flute’s (and its affiliates’) cumulative liability for all losses, claims, suits, controversies, breaches, or damages for any cause (including any of Flute’s indemnification obligations), regardless of the form of action or legal theory, will not exceed one thousand dollars ($1,000.00).

15.2 Without limiting the generality of the foregoing, you agree that Flute shall have no liability at all to you arising directly or indirectly from or otherwise concerning:

(a) any termination, suspension, delay, or disruption of Flute Solutions (including billing for Flute Solutions) by the Internet, any common carrier, or any third-party service provider for the provision of services for Flute Solutions;
 

(b) any failure, disruption, or malfunction of Flute Solutions, the Internet, or any communications network, facility, or equipment beyond Flute or a third-party’s reasonable control;
 

(c) your failed attempts to access Flute Solutions or to complete transactions via Flute Solutions; or
 

(d) any failure to transmit, obtain or collect data; for human, machine, or software errors; or faulty or erroneous input by you.

16. Indemnity.

You will indemnify, defend, and hold Flute harmless (and Flute’s employees, directors, agents, affiliates, and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to:

1. any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms or your applicable agreement for Flute Solutions, including any violation of our policies or the card associations’ rules; 

2. your wrongful or improper use of the Flute Solutions or any Third Party Solutions;
 
3. any transaction submitted by you through the Flute Solutions or any Third Party Solutions (including the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you);
 
4. your violation of any third-party right, including any right of privacy, publicity rights or Intellectual Property Rights;
 
5. your use of any personal information obtained in connection with your use of the Flute Solutions, any Third Party Solutions, or any equipment that is for the provision of services for Flute Solutions;
 
6. the activities under your Account, or any other party’s access and/or use of the Flute Solutions, any Third Party Solutions, or equipment with your unique username, password, API key, payment keys or other appropriate security code; 

7. your failure to maintain reasonable security in connection with the use of the Flute Solutions, any Third Party Solutions, or any equipment that is for the provision of services for Flute Solutions;
 
8. any data breach, information security incident, or the equivalent thereof that arises from your action or inaction;
 
9. your violation of any law, rule or regulation of the United States or any other country; or
 
10. any other party’s access and/or use of the Flute Solutions or any Third Party Solutions with your Account Credentials for the Flute Solutions or any software provided or approved by Flute to authenticate access to, and use of, the Flute Solutions, any Third Party Solutions, and any software.



17. Representation and Warranties.

You represent and warrant that:

1. you are validly existing, in good standing and have the right, power, and authority to enter into and perform under these Terms; 

2. any sales transaction submitted by you: (i) is genuine and arises from a genuine sale or service that you directly sold or provided, (ii) accurately describes the goods or services sold and delivered to a purchaser (including your use of Merchant Category Codes) and (iii) represents the correct amount of goods or services purchased from your business;

3. you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the consumer;
 
4. you, all transactions initiated by you, and your use of the Flute Solutions will comply with all Applicable Laws;
 
5. except in the ordinary course of business, no sales transaction submitted by you through the Flute Solutions will represent a sale to any principal, partner, proprietor, or owner of your entity;
 
6. you will not fraudulently use the Flute Solutions;
 
7. you have obtained all necessary and appropriate rights or given any necessary notices required for Flute to process Account Data as set forth in these Terms or your applicable agreement for Flute Solutions; and 

8. using the provision of service(s) for Flute Solutions, you will not engage in and will not accept payment for any illegal activity.



18. Consent to Electronic Communication.

18.1 You agree that Flute, its affiliates and its third-party sales subcontractors and/or agents, may use, in addition to any live calls, an automatic telephone dialing system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes.

18.2 You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from Flute, its affiliates, and its third-party sales contractors and/or agents.

19. Amendment.

Flute has the right to change or add to these Terms at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Flute Solutions upon notice that Flute deems in its sole discretion to be reasonable under the circumstances, including such notice on Flute’s website or any other website maintained or owned by Flute. Any use of the Flute Solutions after Flute’s publication of any such changes or providing notice shall constitute your acceptance of these Terms as modified.

20. Assignment.

These Terms, and any rights or licenses granted hereunder, may not be transferred or assigned by you (including by operation of law, transfer of voting control of you or otherwise) without Flute’s prior written consent, but may be assigned by Flute without restriction.

21. General Provisions.

These Terms are a complete statement of the agreement between you and Flute and describe the entire liability of Flute, its affiliates, its vendors, and its suppliers, and your exclusive remedy with respect to your use and access to the Flute Solutions. In the event of a conflict between these Terms and the Privacy Policy, the Privacy Policy shall prevail. These Terms shall be governed and construed in accordance with the laws of the State of Arizona without regard to its conflicts of law provisions. If any provision of these Terms is invalid or unenforceable under Applicable Laws, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms do not limit any rights that Flute may have under trade secret, copyright, patent, or other laws or applicable agreement related to the provision of service for Flute Solutions. Except for Flute’s affiliates and as otherwise stated herein, no persons shall be third party beneficiaries to these Terms. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and Flute’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Notices sent to your last known e-mail address or postal address, as indicated in our records, shall constitute effective notice to you under these Terms.

22. Contacting Aurora.

22.1 Agreement to Arbitrate. 

Except as otherwise provided in this Section 22, you and Flute agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or your use of Flute Solutions (collectively, "Disputes") will be settled by binding arbitration between you and Flute, and not in a court of law. This agreement to arbitrate is intended to be broadly interpreted.

22.2 Class Action Waiver. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AND FLUTE AGREE THAT EACH MAY BRING DISPUTES AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not permitted. If this class action waiver is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

22.3 Arbitration Procedures. 

The arbitration will be administered by Judicial Arbitration and Mediation Services ("JAMS") under its Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator. The arbitration shall take place in Phoenix, Arizona. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Payment of all filing, administration and arbitrator fees will be governed by the rules of JAMS, unless otherwise stated in these Terms.

22.4 Exceptions to Arbitration. 

Notwithstanding the foregoing, either party may bring an individual action in small claims court or seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's Intellectual Property Rights, Confidential Information, or proprietary rights.

22.5 30-Day Right to Opt Out. 

You have the right to opt out of this arbitration provision by sending written notice of your decision to opt out to the address provided in Section 23 (Contacting Flute) within 30 days after first accepting these Terms. Your notice must include your name, address, and Flute Account information. If you opt out of this arbitration provision, Flute will likewise not be bound by it.

22.6 Federal Arbitration Act. 

These Terms evidence a transaction involving interstate commerce, and this arbitration provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (FAA), and not by state law concerning arbitration.

22.7 Exclusive Jurisdiction.  

For purposes of enforcing an arbitration award against Flute, or in cases where the obligation to arbitrate is not enforceable for any reason under Applicable Laws, the parties each hereby submit to the exclusive jurisdiction of the federal and state courts located Phoenix, Arizona and waive any objection to such venue.

22.8 Equitable Relief.  

Notwithstanding any other provision in this Section 22, you hereby acknowledge that any violation of these terms as they relate to Section 3, Section 11, and Section 12 could cause irreparable harm and damages that are impossible to calculate and therefore monetary relief alone would be an inadequate remedy.  For any such breach, Flute will be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction.