Updated August 1, 2022
Updated August 1, 2022
These Terms and Conditions (“Terms”) govern your use of our Services (as defined below), which are owned or operated by Flatfile, Inc., a Delaware corporation (“Flatfile”).
These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Site or Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into these Terms on behalf of such entity. By accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in these Terms and unless separately identified as applicable to either an individual or entity, “Customer,” “you” or “your” refers to both you individually and the entity on behalf of which you are entering into these Terms.
General. All services provided by Flatfile under this Terms (“Services”), including the Software Services, will be provided to Customer according to these Terms, the Ordering Documents, and all schedules, exhibits, or other attachments made a part of these Terms.
Services Delivery. Except as otherwise set forth on an applicable Ordering Document, Flatfile may provide the Services from any U.S. facility and may from time to time transfer any or all of the Services being provided hereunder to any new U.S. facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.
Excluded Functions. For purposes of these Terms, these Terms “Services” and “Software Services” (as defined in Sections 2(1) and 3(1) of these Terms) are intended by the parties to reference Flatfile’s commercial off-the-shelf software product and services to be provided by Flatfile to Customer under these Terms. “Services” and “Software Services” hereunder exclude Flatfile’s software development work and its back office functions (collectively, “Excluded Functions”) which are necessary to support Flatfile in its business but which are not interacting with any of Flatfile’s customers or using, accessing or disclosing any Protected Data, Confidential Information or PHI of Flatfile’s customers. Upon Customer’s written request, Flatfile shall provide Customer with then-current information concerning the status of any Excluded Functions performed outside the United States. Flatfile represents and warrants that its personnel performing the Excluded Functions will not have access to any Protected Data, Confidential Information or PHI of Customer, without Customer’s express written permission.
RIGHTS RESERVED. All right, title and interest, including all intellectual and proprietary rights, in and to the Services and all Flatfile service marks, trademarks, trade names, logos, and any modifications to the foregoing (and all suggestions, feedback, contributions, enhancements, improvements, additions, modifications, or derivative works thereto and copies thereof) will remain in possession of Flatfile. No right or implied license or right of any kind is granted to Customer regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the Software Services or the documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the Software Services.
FEES AND PAYMENT TERMS.
Fees. For the Services provided under these Terms, Customer will pay Flatfile the fees in the amounts set forth on the applicable Ordering Document. Unless otherwise set forth on the applicable Ordering Document, applicable fees will be invoiced to Customer annually in advance and payable (i) immediately upon invoice if Customer’s payment method is on file with Flatfile, or (ii) if no payment method has been provided to Flatfile, within thirty (30) days of invoice. If Customer’s use of the Services exceeds the authorized use or otherwise requires the payment of additional fees as contemplated herein, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Fees are non-cancelable and non-refundable. After the Initial Term, and at the beginning of each Renewal Term thereafter, Flatfile may adjust the fees applicable during the upcoming Renewal Term upon written notice provided at least sixty (60) days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. All fees paid and expenses reimbursed under these Terms will be in United States currency.
Late Fees. Customer will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid when due. Flatfile, at its option, may suspend the Services, in whole or in part, if Flatfile does not receive all undisputed amounts due and owing under these Terms within thirty (30) days after delivery of notice to Customer of the failure to pay such overdue balances.
Taxes. The fees and expenses due to Flatfile as set forth in these Terms are net amounts to be received by Flatfile, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by Customer or imposed on Flatfile in the performance of these Terms or otherwise due as a result of these Terms. This section will not apply to taxes based solely on Flatfile’s income.
Offset. Fees and expenses due from Customer under these Terms may not be withheld or offset by Customer against other amounts for any reason.
Technical Requirements. Customer must have required equipment, software, and Internet access to be able to use the Software Services. Flatfile neither represents nor warrants that the Software Services will be accessible through all web browser releases, provided that Flatfile does make the Software Services accessible through the latest releases of all major web browsers.
Use of Software Services. Customer shall not and shall not knowingly permit others in using the Software Services to: (i) violate or infringe the legal rights of others or Flatfile; (ii) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Flatfile; (iii) transmit or upload any harmful material through the Software Services (e.g. viruses, trojan horses, worms, time bombs, cancelbots, etc.); or (iv) intentionally interfere with or attempt to gain unauthorized access to the Software Services. Customer is solely responsible for any and all improper use of the Software Services that occurs as a direct or indirect result of any act or omission of Customer. Customer will notify Flatfile immediately of any unauthorized use of the Software Services or any other breach of security that is known or suspected by a User.
NON-DISCLOSURE AND CONFIDENTIALITY.
PROTECTED DATA; METADATA; DATA USE.
“Protected Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from a User by or through the Services. Notwithstanding anything contained in these Terms, any information that identifies or can be reasonably used to identify an individual person or Customer shall be considered Protected Data.
“Metadata” means information regarding data schemas, validation, labeling, mapping, patterns, formats, file name, file size, file types, encoding, data types, correlations, timing, and file structure. Notwithstanding anything contained in these Terms, Metadata shall not contain (i) any Protected Data, (ii) any Confidential Information of Customer, (iii) any information that identifies or can be reasonably used to identify an individual person, or (iii) any information that identifies or can be reasonably used to identify Customer or its affiliates and their suppliers.
Limited License to Protected Data. Customer hereby grants to Flatfile a non-exclusive, limited license to process, store, and display Protected Data solely to the extent reasonably required for the performance of Flatfile’s obligations and for no other purpose.
Metadata. Customer acknowledges and agrees that all Metadata shall be owned by Flatfile and may be used by Flatfile for any lawful purpose, including, for example, for the purposes of statistical analysis, trend analysis, creation of data models, product innovation and enhancements to current products, and creation of statistical rules.
LIMITED WARRANTY. Flatfile represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software Services will perform substantially in accordance with the documentation under normal use and circumstances. Each party represents and warrants that it has the legal power and authority to enter into these Terms. OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THESE TERMS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL FLATFILE, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“FLATFILE PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
AN FLATFILE PARTY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID FLATFILE FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE FLATFILE PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FLATFILE TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE SECTION ABOVE WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
INSURANCE. During the Term, Flatfile shall maintain at least the following types and amounts of insurance coverage:
Commercial general liability with limits no less than $4,000,000 USD for each occurrence and $8,000,000 USD in the aggregate, including bodily injury and property damage and products and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of Flatfile under these Terms;
Worker's compensation with limits no less than the greater of (i) $2,000,000 USD, or (ii) the minimum amount required by applicable law; and
Flatfile Indemnification. Flatfile shall defend Customer and its officers, directors, employees, agents, successors and permitted assigns against any third party claim, suit, action or proceeding (each, an “Action”) based on a claim that Customer’s receipt or use of the Services in accordance with these Terms infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Customer to the extent based on such an Action; provided, however, that Flatfile shall have no obligations under this Section 12.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Customer to Flatfile; (b) use of the Services in combination with any materials or equipment not supplied to Customer or specified by Flatfile in writing; or (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Flatfile. If the Services, or any part thereof, become, or in the opinion of Flatfile may become, the subject of a claim of infringement or misappropriation, Flatfile may, at its option: (i) procure for Customer the right to use such Services free of any liability; (ii) replace or modify the Services to make them non-infringing; or (iii) terminate these Terms and refund to Customer any portion of the fees prepaid by Customer for the infringing Services.
Customer Indemnification. Customer agrees to defend, indemnify and hold the Flatfile Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) Protected Data or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any rights of another; or (iv) your use of the Services.
Indemnification Procedures. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section shall not relieve the indemnifying party of its obligations under this Section except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
TERM AND TERMINATION.
Initial Term. These Terms shall commence on the Effective Date and shall continue in full force and effect for the initial term set forth on the applicable Ordering Document (“Initial Term”), unless earlier terminated as provided for below. Thereafter, the Initial Term shall automatically renew for successive periods of one (1) year each (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party at least 30 days (or as otherwise defined in the Ordering Document) prior to the end of the then-current Initial Term or Renewal Term of its intent to not renew these Terms.
Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate these Terms as provided below:
Effect. Upon termination of these Terms for any reason, all rights and licenses granted by Flatfile hereunder to Customer will immediately cease. Within thirty (30) days after termination or expiration of these Terms, each party shall return or destroy the Confidential Information of the other party.
Survival. Termination of these Terms or any Schedule will not affect the provisions regarding Flatfile’s or Customer’s treatment of Confidential Information, provisions relating to the payments of amounts due, indemnification provisions, provisions limiting or disclaiming Flatfile’s liability, or any other terms which by their nature should survive, which provisions will survive such termination.
Use of Company logo and name on Flatfile's website (www.flatfile.com).
Customer will participate in the development of a case study or quote to be used as part of Flatfile's sales and marketing material, showcased on Flatfile's website, or a press release. Case study and/or quote to be approved by Customer.
Governing Law. These Terms shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.
Conflicting Terms. Notwithstanding the content of any Customer purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of these Terms, these Terms of these Terms shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
Notice. All communications required or otherwise provided under these Terms shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; or (iii) by a nationally recognized overnight courier service; to the address set forth on the applicable Ordering Document, as may be amended by the parties by written notice to the other party in accordance with this Section.
Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under these Terms, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign these Terms to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. These Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Interpretation. For purposes of these Terms, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole. Should any provision of these Terms require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that these Terms of these Terms shall be more strictly construed against one party than against another.
Severability. In case any one or more of the provisions of these Terms should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
Entire Agreement. These Terms, including all Ordering Documents, Schedules, and any other agreements, addenda or exhibits incorporated herein by reference, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
Amendment; Waiver. These Terms may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Force Majeure. Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.
Modifications. Flatfile may modify, upgrade or update the Services at any time in our discretion provided that we will not materially reduce or lessen the functionality of the Services during your subscription term set forth in an Ordering Document unless doing so is required to avoid a violation of applicable laws or regulations in Flatfile’s reasonable discretion. Flatfile reserves the right, at our discretion, to change the terms of these Terms on a going-forward basis at any time. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Equitable Relief. Each party acknowledges that a breach by a party of the “Restrictions” or “Non-Disclosure and Confidentiality” Sections may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Terms to the contrary.
No Third-Party Beneficiaries. These Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of these Terms.
Relationship of Parties. Nothing in these Terms shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
Counterparts. These Terms may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of these Terms delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of these Terms.
Service Level Terms
The Services shall be available 99.8%, measured monthly.
If Customer requests maintenance, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.
Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify the Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.
Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.
Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under these Terms.
Company will provide Standard Technical Support to Customers on weekdays during the hours of 8:00 am through 8:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”).As part of our Standard Support tier, communication is to be managed over email. We will phase chat channels following the conclusion of a successful implementation. All issues are to be resolved, using commercially reasonable efforts, with an immediate response and resolution aligned to the business expectations of the customer. Customer may initiate a request ticket at any time using email@example.com or by accessing the Knowledge Base found here:https://support.flatfile.com/hc/en-us