Last Updated: 06/02/2022
13166678 Canada Inc. (Flowin”, “WE”, “OUR” AND “US”) PROVIDES VARIOUS PROPRIETARY TECHNOLOGY SOFTWARE SOLUTIONS FOR USE IN THE CREATION OF TEXT AND COPY, INCLUDING BUT NOT LIMITED TO “AI TEXT GENERATION”, “AI GENERATED COPY”, “AI FOR COPY”, “AI-POWERED COPYWRITING”, “DATA DRIVEN COPYWRITING”, AND “COPY GENERATED BY MACHINE LEARNING AND NATURAL LANGUAGE PROCESSING MODELS” (COLLECTIVELY, THE “SOFTWARE”) AND VARIOUS INTERNET-BASED PLATFORMS, INCLUDING AN ONLINE PORTAL AND AN APPLICATION PROGRAMMING INTERFACE (“API”), FROM WHICH USERS CAN ACCESS AND UTILIZE THE SOFTWARE (COLLECTIVELY ALL OR ANY OF THE FOREGOING, INCLUDING WITHOUT LIMITATION THE SOFTWARE AND API, THE “SITE”).
These Terms of Service and License Agreement (“Terms” or “Agreement”) govern your access to and use of the Site.
The term “you,” as used in these Terms, means any person or entity who accesses or uses the Site, either pursuant to a completed subscription registration (“Subscription Registration”) or pursuant to any other agreement with Flowin, and any person or entity who creates an Account and accepts these Terms, including Owners, Authorized Users, and the parents or guardians of Authorized Users, as applicable. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. THE DISCLAIMERS, EXCLUSIONS, MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION, AND WAIVER OF PUNITIVE DAMAGES UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCESSING AND USING THE SITE, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SITE, AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SITE.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SITE.
AS DESCRIBED BELOW, THESE TERMS DESCRIBE IMPORTANT LIMITATIONS OF THE SITE, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. OVERVIEW, ELIGIBILITY, CUSTOMER SERVICE, TERM AND TERMINATION
2. GRANT OF LICENSE
Subject to the terms of this Agreement, we grant to you a limited, non-exclusive, non-transferable, non-assignable, revocable license to access and use the Site as described herein. In connection with the license of the Site, the parties acknowledge and agree that Flowin is expressly not selling to you, and you are not acquiring any right, title or interest in or to, any patents, copyrights, trade secrets, trademarks, service marks, trade names, the company name of Flowin, inventions, works of authorship, or any other intellectual property of Flowin (“Flowin Intellectual Property”), and you will use the Site strictly in accordance with our standards, policies, and procedures as specified by us from time to time.
You shall comply in full with all federal, state, local and foreign laws, rules, and regulations in connection with your access to, and use of, the Site. The Site may be accessed and used only in a form and manner approved by Flowin in its sole discretion, and only in accordance with the terms and conditions of this Agreement.
You acknowledge that the Site contain valuable trade secret and proprietary information of Flowin, that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to Flowin for which monetary damages would be an inadequate remedy, and that injunctive relief without the posting of any bond is an appropriate remedy for such breach.
3. LICENSE RESTRICTIONS
In connection with the license of the Site, you shall not:
You may market and promote the Site only upon written approval from Flowin to engage in such marketing and/or promotion activities and only with explicit reference to Flowin in such marketing and/or promotion activities. This includes, but is not limited to, your promotion of “AI text generation”, “AI generated copy”, “AI for copy”, “AI-powered copywriting”, “copy using AI”, “copy generated by Machine Learning and Natural Language Processing Models” or derivatives thereof that promote Flowin’s Site. To obtain such approval, you must provide written details and documentation to Flowin as to the proposed marketing and/or promotion activities you wish to undertake. Flowin reserves the right, in its sole discretion, to approve or deny such marketing and/or promotion activities. Once approved, you may market the Site only if Flowin is explicitly referenced in such marketing and promotion activities and only to the extent of such Flowin prior approval.
4. FEES AND PAYMENT
Monthly or annual subscription customers will be charged the fees set forth in the Subscription Registration or as otherwise agreed in a written Purchase Order (“PO”) between you and Flowin.
You agree to pay all subscription fees applicable to your use of the Site (“Subscription Fees”). Unless otherwise specified in your Subscription Registration, such fees will be billed in advance for each month or year and are non-refundable. You agree that you may not be refunded or credited for partial month’s subscription, or for periods in which your Account remains open but you do not access the Site. If you exceed any usage or fee thresholds set forth in your subscription or PO, we may charge you for such overages on your next invoice. Unless otherwise agreed, all amounts and fees due: (1) shall be payable in US Dollars; (2) are non-cancellable and non-refundable; and (3) are exclusive of all taxes, which shall be added to Flowin’s invoice(s) at the appropriate rate. You agree to make all payments without set-off or counterclaim and free and clear of any withholding or deduction.
By entering a credit card number, you agree that Flowin, and our Third Party service providers, may store your payment card information. You expressly authorize us to charge you, where applicable: (i) Subscription Fees, to be billed during the term of your Subscription Registration and (ii) applicable taxes connected with your Subscription Registration. If the payment card you provide expires and you do not update your payment card information or cancel your subscription, you authorize us to suspend your Account until your billing details have been updated.
We reserve the right to modify our billing rates at any time upon thirty (30) days written notice by posting these fee changes to the Site or by notifying you via email. Should you continue to use the Site after these changes go into effect, you will be responsible for paying the new subscription/billing rate.
5. AUTOMATIC SOFTWARE UPDATES
Flowin may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Site (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your sole remedy is to terminate your Account and stop using the Site. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Site, and you agree to promptly install any Updates Flowin provides. Your continued use of the Site is your agreement (i) to these Terms with respect to the Site, and (ii) any change or updates that Flowin may make to these Terms over time.
8. AGREED USAGE AND LIMITATIONS
9. LIMITATIONS OF Flowin SERVICES DUE TO THIRD PARTIES
Flowin understands that you are to use the Site for various purposes. Flowin hereby consents to your use of the Site as detailed in these Terms and in any written agreement between You and Flowin expressly referencing these terms. You may not use the Site or any content or data you obtain therefrom in any other public or commercial way nor may you copy or incorporate any of the content of the Site into any other work, including your own web site without the written consent of Flowin. You must have a license from us before you can post or redistribute any portion of the Site. Other than with respect to User Content which you input into the Site, Flowin retains full and complete title to all content on the Site, including any downloadable software and all data and derivative works of the data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Site or any content therein.
Flowin does not share your Compiled Data with any third parties except as described herein. Flowin specifically uses your Compiled Data to improve the Site and to inform, enhance, and improve internal models.
10. INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD Flowin AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY THE “Flowin PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE Flowin PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE SITE, (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS, (C) ANY USER CONTENT OR FEEDBACK YOU PROVIDE; (D) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY; OR (E) ANY ALLEGATION THAT THAT DATA YOU INPUT INTO THE SITE INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, (COLLECTIVELY “THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE Flowin PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE Flowin PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE Flowin PARTIES, OR MADE BY ANY OF THE Flowin PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE Flowin PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE Flowin PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE Flowin PARTIES, OR GROSS NEGLIGENCE OF THE Flowin PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, INCLUDING WITHOUT LIMITATION, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE OR INSURANCE COMPANY. Flowin reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify Flowin and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Flowin’s prior written consent. Flowin will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11. WARRANTY DISCLAIMERS
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR ON THE SITE:
12. WAIVER OF SUBROGATION
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE Flowin AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL Flowin OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
IN EVERY EVENT, Flowin’S TOTAL MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SITE SHALL BE LIMITED TO FIVE ($5.00) US DOLLARS.
THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR Flowin TO ASSUME ANY RISKS BEYOND THOSE EXPRESSLY ASSUMED HEREIN AND IF ANY SUCH RISKS WERE TO BE ASSUMED BY Flowin, Flowin WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.
14. GOVERNING LAW AND ARBITRATION
These Terms are governed by and construed in accordance with the laws of the State of New York and the United States of America, without regards to their respective principles of conflicts of law. Any disputes relating to these Terms or the Subscription Registration will – if it cannot be resolved informally by you and us – be resolved solely and exclusively by arbitration in New York City, New York under the then current rules of the American Arbitration Association in accordance with its Commercial Arbitration Rules (including the Optional Rules for Emergency Measures of Protection), and judgment upon the award entered by the arbitrator may be entered in any Court having jurisdiction thereof. The arbitration proceedings shall be conducted before one (1) neutral arbitrator selected by the American Arbitration Association. Costs of arbitration, including attorney’s fees in arbitration, as determined by the arbitrator, with attorney’s fees incurred by the prevailing party in Court enforcement of the arbitration award after the arbitrator renders it, must be paid to the prevailing party by the part designated by the arbitrator or Court. Either you or Flowin may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either your or Flowin also may, without waiving any remedy under these Terms, seek from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). Should Flowin or you either dismiss or abandon their claim or counterclaim before the hearing, the other party will be deemed the “prevailing party” under these terms. Should both parties receive judgment or award on their respective claims, the party in whose favor the larger judgment or award is rendered will be deemed the “prevailing party” under these Terms.
We reserve the right to make changes to these Terms. Any changes we make to these Terms will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the Flowin websites. Your use of the Site after such notice will be deemed acceptance of such changes.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms, and any documents referred to in it, set out the entire agreement between us relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements between us. These Terms are not assignable, transferable or sub-licensable by you except with Flowin’s prior written consent. These Terms shall not be construed as a teaming, joint venture, or other such arrangement, unless the parties expressly and explicitly execute an agreement to that effect. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.