This is a contract between you (the Customer) and us (FlowTrack). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms. If you have an active FlowTrack subscription, we will let you know when we do via an email or in-app notification.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
"Billing Period" means the period for which you agree to pay fees, which will be the same as or shorter than the Subscription Term as specified in the Order Form or website. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Communication Services" means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential. Confidential Information shall include all information concerning: (a) Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data shall be Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"Contact" means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
"Contact Information" means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration, new feature requests, development, or other consulting services.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include FlowTrack Content.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
"Email Send Limit" means the number of emails that you may send in any given hour, day, week, month.
"Phone Call Limit" means the number, frequency, or length of calls you may initiate in any given hour, day, week, month.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
“Full-Service Marketing FlowTrack Products” means our products that include training, education, assistance, or setup of workflows in FlowTrack.
"FlowTrack Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, icons, sounds, sounds, illustrations, downloaded data, data compilations, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
"Maximum Records" means the maximum number of records you are permitted to use with the Subscription Service as identified in your Order Form, plus any records added as part of an upgrade. Records include; contacts, emails, per contact per step automation run, tasks, opportunities, billing transactions, invoices, and notes.
"Order" or "Order Form" means the FlowTrack-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online process or via in-app purchase. The Order may be referred to as a "Statement of Work" if you are purchasing only Consulting Services.
“Paid Users” means those types of Users (defined below) for which we charge you fees as set forth in our Product and Services Catalog.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“Product and Services Catalog” means FlowTrack’s Product and Services Catalog available at http://FlowTrack.co/, as updated by us from time-to-time.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account numbers or wire instructions; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords or log-in credentials; racial or ethnic origin; or other employment or health information, including any information subject to the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Data Protection Laws as sensitive personal data (including non-health related special categories of personal data enumerated in; European Union Regulation 2016/679, Article 9(1) or any successor legislation).
"Sensitive Health Information" means (a) physical or mental health condition or information; or other protected health information, including any information subject to the Health Insurance Portability and Accountability Act (HIPAA), California Confidentiality of Medical Information Act (CMIA); and (b) any information defined under European Data Protection Laws as sensitive personal health data (including health related special categories of personal data enumerated in; European Union Regulation 2016/679, Article 9(1) or any successor legislation). This includes any Individually Identifiable health information about a patient’s medical history, mental or physical condition, or treatment. Information that identifies a person, inclusive of a name, email address, physical address, phone number or Social Security number, is considered Individually Identifiable. Individually Identifiable shall also mean information that when combined with publicly available information the information can be used to identify a patient.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based business software applications and hosting services that you have subscribed to by an Order Form or that we otherwise make available to you, accessible via http://FlowTrack.co or another designated URL, and any ancillary products and services that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-FlowTrack apps available from, for example, the following: our integrations page, application directory, and links made available through the Subscription Service and non-FlowTrack services listed online.
"Third-Party Sites" means third-party websites linked to from within the Subscription Service, including Communications Services.
“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your FlowTrack accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"FlowTrack", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your FlowTrack account. We might provide some or all elements of the Subscription Service through third party service providers. Your Affiliates may access and use the Subscription Service or receive the Consulting Services purchased under this Order; provided that, all such access, use and receipt by your Affiliates is subject to and in compliance with the Agreement and you shall at all times remain liable for your Affiliates' compliance with the Agreement.
Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your FlowTrack account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your FlowTrack account.
Service Uptime Commitment. For the purposes of this 'Service Uptime Commitment' section, the following definitions shall apply:
"Priority 1" means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Subscription Service, excluding Free Services, across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime and where there is no workaround or solution to the problem.
"Excluded" means the following: (i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or any other force majeure event or factors; (ii) any problems resulting from Customer's combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service; (iii) interruptions or delays in providing the service resulting from telecommunications or internet service provider failures outside of our datacenter as measured by our third party website availability monitoring provider; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service.
"Service Uptime" means (total hours in calendar month - unscheduled maintenance which causes unavailability - Priority 1 issue durations - scheduled maintenance - Excluded) / (Total hours in calendar month - scheduled maintenance - Excluded) X 100%.
We will use commercially reasonable efforts to meet a Service Uptime of 99.95% for our Subscription Service in a given calendar month. All availability calculations will be based on our system records. Notwithstanding anything to the contrary in this Agreement, as Customer's sole and exclusive remedy for failure to meet availability or support commitments, in the event there are two (2) or more consecutive calendar months during which the Service Uptime falls below 99.95% in a given calendar month, Customer will be entitled to receive a credit equal to the pro-rated amount of fees applicable to the downtime as measured within two (2) or more consecutive calendar months during which the Service Uptime fell below 99.95%, which credit shall be applied against an invoice or charge for the following renewal Subscription Term, provided Customer requests such credit within twenty (20) days of the end of the relevant calendar month. Notwithstanding anything to the contrary in the Agreement or this section, this 'Service Uptime Commitment' section does not apply to our Free Services.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
a. Subscription Fees. The Subscription Fee will remain fixed during the initial terms of your subscription unless you: (i) exceed your Maximum Records, Email Send Limit, Phone Call Limit, User or other applicable limits (see the ‘Limits’ section below), (ii) upgrade products or base packages, (iii) subscribe to additional features or products, including additional Contacts, or (iv) unless otherwise agreed to in the Order. You can learn more about how your fees may be otherwise adjusted in the remainder of this 'Fees and Payment' section below.
For our Full-Service Marketing FlowTrack Products, once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Contacts or emails sent. For details on how to manage your Contacts to avoid an increase in your Subscription Fee, see the 'Fee Adjustments in Next Billing Period' section below. We will monitor or audit remotely the number of Contacts in the Subscription Service and the number of emails that you send on the Subscription Service. If you subscribe to our Full-Service Marketing FlowTrack Products, this information is also made available to you in your FlowTrack account.
For our products that have applicable User limits, you will be charged fees associated with all Paid Users.
b. Fee Adjustments in Next Billing Period. We determine the Contact tier for the next Billing Period by reviewing the number of Contacts in your account. For our Full-Service Marketing Products, we complete this review between forty (40) and twenty-five (25) days before the start of your next Billing Period or we may complete this review on the last day of your Billing Period. If the number of Contacts in your account exceed your Maximum Records when we complete this review, then your Subscription Fee will increase at the beginning of the next Billing Period up to the tier price which corresponds with the reviewed number of Contacts. Tier prices are as set forth in our Product and Services Catalog.
We allow you to reasonably manage the number of Contacts during the course of a Billing Period and will not count Contacts removed before our review, unless these Contacts are temporarily removed to avoid a fee increase. If Contacts are temporarily removed to avoid a fee increase, we may consider the maximum number of Contacts from the reviewed Billing Period for the purposes of determining your Contact tier.
This review and upgrade process will continue for each Billing Period during the Subscription Term.
c. Fee Adjustments During a Billing Period. For our Full-Service Marketing FlowTrack Products, the Subscription Fee will increase during the course of a Billing Period if you exceed your Email Send Limit or Phone Call Limit in a Billing Period. In this case, the Subscription Fee will increase to the tier price which corresponds with your maximum monthly email sends from the current Billing Period.
If you reach any Email Send Limit, Phone Call Limit, or any other activity limit, you will not be able to send more or perform any activities related to this limit until the start of the next calendar month or starting when the limit is no longer exceeded, including actions pre-scheduled to go out after reaching a Send Limit or activity limit.
The Subscription Fee will increase during a Billing Period up to the corresponding base package and tier price (as set forth in our Product and Services Catalog) if you exceed the subdomains limit, add Paid Users, exceed other applicable limits (except as set forth in the ‘Fee Adjustments in Next Billing Period’ section), change or add products, or subscribe to additional features for use during the Billing Period. We may choose to decrease your fees upon written notice to you.
d. Fee Adjustments at Renewal. Upon renewal, we may increase your fees up to our then-current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
e. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
f. Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
g. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your FlowTrack account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a FlowTrack Solutions Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
h. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
a. Acceptable Use. You will comply with our Acceptable Use Policy at https://policy.FlowTrack.co/acceptable-use-policy ("AUP") and agree and warrant to only use the Subscription Services for lawful purposes.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate and local, state, federal, or foreign laws or regulations including but not limited to; the Gramm-Leach-Bliley Act (GLBA), Federal Trade Commission Act (FTCA), Telephone Consumer Protection Act (TCPA), Nutrition Labeling and Education Act (NLEA). Nothing contained herein shall limit the usage restrictions specific to Sensitive Information and Sensitive Health Information under the Agreement.
You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by following the instructions at [email protected] You are solely responsible for maintaining the confidentiality of any usernames, passwords and all your account information, and are fully responsible for any and all activities, including electronic communications, that occur under and on behalf of your account.
ANY OTHER SERVICE NOT IN THE LIST ABOVE MAY NEVER BE USED TO STORE SENSITIVE HEALTH INFORMATION. A NON EXAUSTIVE LIST OF SERVICES, AREAS OR PAGES OF THE PRODUCTS AND SERVICES THAT ARE INELIGIBLE INCLUDE;
YOU ACKNOWLEDGE THAT AREAS AND PAGES OF THE SUBSCRIPTION SERVICES ARE ROLE AND PERMISSION BASED AND YOU ARE SOLELY RESPONSIBLE FOR ENSURING THE CORRECT ROLES AND PERMISSIONS TO PROTECT SENSITIVE HEALTH INFORMATION IN EVERY PART OF THE SUBSCRIPTION SERVICE. IN SOME CASES YOU WILL FIND MULTIPLE PERMISSIONS OR ROLES THAT PROVIDE ACCESS TO THE SAME, SIMILAR, OR SUBSETS OF DATA. A NON EXAUSTIVE LIST FOR EXAMPLE PURPOSES IS BELOW;
WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE HEALTH INFORMATION IN VIOLATION OF RULES, REGULATIONS, LAWS, AND SECURITY STANDARDS/PRACTICES FROM YOUR INCORRECT OR INSECURE USE OF ANY SERVICES. GIVEN THE COMPLETE FLEXIBILITY YOU HAVE FOR CUSTOMIZATION INCLUDING BUT NOT LIMITED TO ABILITY TO ENTER AND PROCESS YOUR OWN CUSTOM CODE AND THIRD PARTY INTEGRATIONS IT IS SOLELY YOUR RESPONSIBILITY FOR IMPLEMENTING SECURE PRACTICES AND ENSURING IF DATA LEAVES THE SUBSCRIPTION SERVICE TO BE STORED, PROCESSEED, OR MANAGED IT IS LEGAL AND COMPLAINT TO DO SO.
d. Use of FlowTrack application directory and third party integrations. If you use any of the provided applications or third party integrations, you agree to comply with all third party applicable terms of service, acceptable use policies, and any other terms of the third party. You also agree to hold FlowTrack harmless for all issues that may arise from use of the applications and third party integrations.
Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of use of any of the applications in the FlowTrack application directory or any of the third party integrations. Regardless if these integrations or applications were developed with your support, ideas, testing, or funding.
WE DISCLAIM ALL LIABILITY WITH RESPECT TO SERVICE OFFERINGS, THIRD-PARTY SITES AND THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE FlowTrack APPLICATION DIRECTORY OR INTEGRATIONS TO YOU.
f. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product. We expressly disclaim any and all liability in connection with any such Third-Party Sites and Products.
g. Registration. You may only signup for yourself individually or as an authorized company representative on behalf of your company. We do not permit any person to signup on behalf of another individual without an appropriate Power of Attorney. You must provide complete, accurate, and truthful information during signup and in all communications with FlowTrack. If we suspect your information is untrue or inaccurate we may in our sole discretion suspend or terminate your access to the Services.
h. Accounts You will also warrant that all the information you provide us is truthful and accurate. Every account is limited to one user. So called “agency accounts,” or accounts that host items for third parties are prohibited under one account unless otherwise specified in your paid service.
a. Term and Renewal. Your initial subscription period will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below.
If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
b. Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the FlowTrack email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
f. Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
h. Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You may request the deletion of your FlowTrack account after expiration or termination of your subscription by sending a request to [email protected] . You will continue to be subject to this Agreement for as long as you have access to a FlowTrack account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and FlowTrack Content. We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
(1) Full-Service Subscriptions: Paid Add-Ons for training, implementation of workflows
(2) Limited Service Subscriptions: All paid FlowTrack subscriptions and paid Add-Ons.
(3) Free Subscriptions: FlowTrack Software and all other products for which you do not pay us a Subscription Fee that we do not otherwise name in this ‘Subscription Types’ section.
For our Full-Service Subscriptions, if we make modifications to the limits set forth in the Product and Services Catalog that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits in our Product and Services Catalog will apply to your subscription, unless you and we otherwise agree.
For our Limited Service Subscriptions, we may change the limits that apply to you at any time in our sole discretion.
For our Free Subscriptions, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee.
Downgrades. For all versions above the Starter edition product, you may not downgrade your subscription and in order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. For our Starter edition products, you may downgrade your subscription at the start of your next renewal Subscription Term, as specified in the ‘Fee Adjustments at Renewal’ section above.
Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
For our Full-Service Subscriptions, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term.
For our Limited Service Subscriptions and Free Subscriptions, we may make changes that materially reduce the functionality provided to you during the Subscription Term.
Customer Support. If you pay us a Subscription Fee for our Starter edition products, email and in-app support is included at no additional cost. If you pay us a Subscription Fee for any plan above the Starter edition products, phone, email and in-app support is included at no additional cost. Phone support for eligible subscriptions is available from 9am-9pm EST (Eastern Standard Time), with reduced hours during holidays in the US. We accept email and in-app support questions 24 hours per day x 7 days per week. Email and in-app responses are provided during phone support hours only. We attempt to respond to email and in-app support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of FlowTrack representatives. Issues resulting from your use of API's or your modifications to code in the Subscription Service may be outside the scope of support. We will only provide support for integrations which are listed in-app as being supported by FlowTrack.
Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section above.
Unless otherwise specified in your Order, to prevent renewal of a Full-Service Subscription, you or we must give written notice of non-renewal and this written notice must be received no less than ten (10) days in advance of the end of the Subscription Term.
Unless otherwise specified in your Order, to prevent renewal of a Limited Service Subscription, you or we must give written notice of non-renewal and this written notice must be received before the next renewal period begins.
If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by turning auto-renew off by accessing the billing details information in your FlowTrack account, or by contacting us via the information available on our website.
To prevent continuation of the Subscription Term of a Free Subscription, you or we may close your account.
For our Limited Service and Free Subscriptions, we will not provide you with any access to Customer Data after termination or expiration of your subscription.
For important information on our products, please reference any specific Product Disclosures which are in addition to the privacy disclosures about the Subscription Service.
b. Responsibility For Activity You and us both agree that FlowTrack is acting as a web host Internet Service Provider (ISP) FlowTrack and that has no control over your use of FlowTrack including but not limited to your marketing campaigns, contacts, and compliance. Information and content we do not own or control may be transmitted, hosted, stored, accessed, or otherwise made available by use of the Subscription Service. Even though we may be required to take action in a DMCA process, or any other process, this shall not constitute control or management over your business or use of the Subscription Service. Also including but not limited to if FlowTrack provided assistance in troubleshooting any issues or any assistance with fufillment of any Full-Service Marketing FlowTrack Products or Consulting Services completed specifically at your direction and control. You are ultimately in control over any and all activity and data in your business and your account including but not limited to; Personal Data, Customer Data, Customer Materials, Users, marketing messaging, workflows, marketing activities and practices, compliance, opt-ins, opt-outs, messaging, emails, sms, phone calls, call center, disclosures, privacy, and following all laws and regulations. FlowTrack reserves the ability to disable accounts if we learn of a violation of our Acceptable Use Policy or disabling of accounts related to the Billing policy. Any activity performed under a FlowTrack Consulting Service you agree is as if you performed this activity directly yourself and FlowTrack is not offering any assistance or advice in any way regarding marketing practices or compliance. You agree to immediatly review any and all FlowTrack work product from any Consulting Services or support to verify your compliance or continued compliance with all rules and regulations.
c. Data Practices. We may monitor use of the Subscription Service by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. For clarity any data provided to other customers or third parties will only be in an aggregated and anonymous manner. We use Customer Data in an anonymized manner for machine learning that supports certain product features and functionality within the Subscription Service.
d. Protection of Customer Data. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service. We may change what Enrichment Data we provide, or discontinue providing Enrichment Data at any time with or without notice to you.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and shall apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA which can be found here
DMCA Copyright Notifications We operate as a "Service Provider" as defined in the Digital Mellennium Copyright Act. Information and content we do not own or control may be transmitted, hosted, stored, accessed, or otherwise made available by use of the Subscription Service. We have policies and procedures in place for the removal of any content, or suspension of any user, found to be infringing on our rights or the rights of a Third-Party. We will process notifications of claimed infringement under subsections 512(b), (c), and (d) of the Digital Millennium Copyright Act ("DMCA", found at 17 U.S.C. § 512). All such notifications must meet the requirements of DMCA subsection 512(c)(3). In addition, notifications with respect to activity described in DMCA subsection 512(b) must meet the requirements of subsection 512(b)(2)(E), if applicable, and notifications with respect to activity described in DMCA subsection 512(d) must meet the requirements of subsection 512(d)(3). We may also provide transitory digital network communications services, pursuant to 17 U.S.C. § 512(a). Our designated agent to receive notifications of claimed infringement as described in DMCA is 220 Calle Manuel Domenech Unit #2012 San Juan, PR 00918 and [email protected] These Terms fully incorporate by reference the DMCA Policy.
Confidentiality. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services and except for your FlowTrack Solutions Partner bound by confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) Receiving Party will provide Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient (in no event less than 90 days plus the duration of any legal chalange) to allow Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event shall Receiving Party disclose Confidential Information to a party including a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
Publicity. You grant us the right to add your name and company logo to our customer list and website. To object to this use, please indicate so by emailing [email protected] .
Indemnification. You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you or your Affiliates, (b) your or your Affiliates' noncompliance with or breach of this Agreement, (c) your or your Affiliates' use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WITHOUT LIMITING OUR OBLIGATIONS IN THE 'PROTECTION OF CUSTOMER DATA' SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, FlowTrack CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, FlowTrack CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. **No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT OTHER THAN VIOLATION OF NON-DISPARAGEMENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
d. Results May Vary Every online business is different, employing different strategic approaches, organizational structures, and different products and services. Therefore, your results will vary. YOUR RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOU, INCLUDING BUT NOT LIMITED TO YOUR CONTENT, BUSINESS MODEL, AND PRODUCT AND SERVICE OFFERINGS. We do not promise, guarantee, or warrant your success, income, or sales. You understand and acknowledge that we will not at any time provide sales leads or referrals to you or your business. Further, we do not make earnings claims, efforts claims, return on investment claims, or claims that our services or other offerings will make your business any specific amount of money, and it is possible that you will not earn any money or any investment back.
d. Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted in the members portal and we will let you know via email or in-app notification. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. If you would like to receive an email notification when we update the Customer Terms of Service you may request so by sending an email to [email protected] For any specific Product Disclosures, if we make updates or changes we will provide notice of those changes at our discretion. The updated Product Disclosures page will be effective upon posting. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within seven (7) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws. You are solely and exclusively responsible for complying, and will comply, with any and all applicable laws and regulations in your use of the Subscription Service and Consulting Services, including any applicable export laws. This includes but is not limited to all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service and Consulting Services. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. We shall have no liability for your violation of any laws. You agree to notify us if any investigation or lawsuit is threatened or filed against you, whereupon we shall have the right to terminate this Agreement without liability.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided in our FlowTrack Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
i. Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any FlowTrack affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. Customer further warrants and represents that it has the authority to procure its Affiliates compliance with the terms of this Agreement.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘Early Cancellation', ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘FlowTrack’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’. Additionally, the ‘Alpha/Beta Services’ section of the Product Disclosures page shall survive expiration or termination of this Agreement.
n. Precedence. In the event of a conflict between the terms of the Customer Terms of Service and an Order, the terms of the Order shall control, but only as to that Order.
o. Security of Card Holder Data (PCI 12.9). As a service provider we acknoledge to you that we are responsible for the security of cardholder data we possess, store, processes, or transmit on behalf of you to any third party payment integrations. YOU ACKNOLEDGE CARD HOLDER DATA MAY ONLY BE STORED IN STANDARD CARD DATA FIELDS. IN OTHER WORDS NO STORING CARD HOLDER DATA IN UNEXPECTED LOCATIONS INCLUDING BUT NOT LIMITED TO; NOTES, USERNAMES, TAGS, ETC. WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO STORE CARD HOLDER DATA IN UNEXPECTED LOCATIONS THAT ARE NOT BUILT IN FIELDS SPECIFICALLY LABELED FOR CREDIT CARD.
p. Digital Millennium Copyright Act We respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998. If you believe that materials or content available hosted on the Service infringes any copyright you own, you or your agent may send us a written notice requesting that we remove the materials or content. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send us a counter-notice. Notices and counter-notices should be sent to; Attention Legal Department [email protected] . These Terms fully incorporate by reference the DMCA Policy .
Customer Info When collecting Sensitive Health Information you must always maintain or collect and email addresses from the each person, and specify in the terms that we may use the email address provided as a formal method of communication, including breach notification, should a breach occurs that impact their Protected Health Information.
Notification of Breach. You acknoledge the additional terms within this section if ths Subscription Service is used to store Sensitive Information or Sensitive Health Information;
The FlowTrack Customer that accesses, maintains, retains, modifies, records, stores, destroys, or otherwise holds, uses, or discloses unsecured sensitive data shall, without unreasonable delay and in no case later than 72 hours after discovery of a breach, notify FlowTrack of such breach. The Customer shall provide FlowTrack with the following information:
Depending on the nature of the breach, an investigation may be conducted by FlowTrack or the Customer or jointly to determine the cause of breach.
Notice to Media: Unless FlowTrack is directly at fault for the cause of breach, FlowTrack Customers are responsible for providing notice to prominent media outlets at the Customer's discretion. Where FlowTrack is not at fault Company shall not name FlowTrack in any notice or media unless otherwise required by law to do so. In such event copies of such notice and media will be sent by Customer to FlowTrack before the release of any material to ensure accuracy and provide Company and FlowTrack the opportunity to avoid reputational damages and other types of damges.
Notice to Authorities: Unless FlowTrack is directly at fault for the cause of breach, FlowTrack Customers are responsible for providing notice to the appropriate authorities, including the Secretary of Health and Human Services (HHS) and your Lead Supervisory Authority (LSA) under GDPR, at the Customer's discretion.
Fincosa LLC, 220 Calle Manuel Domenech #2012, San Juan, PR, 00918, USA