Terms of Service | Emplicit Inc. (DBA FlatFilePro)
EMPLICIT INC (dba FlatFilePro). TERMS OF SERVICE
Effective Date: July 18, 2021
THESE TERMS OF SERVICE (“TERMS”) APPLY TO YOUR COMPANY’S USE OF THE FLATFILEPRO PLATFORM (“PLATFORM”) PROVIDED BY EMPLICIT INC. DBA FLATFILEPRO (“FFP”). PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THE FOLLOWING TERMS CAREFULLY.
BY USING THE FFP PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT: (I) YOU HAVE READ ALL OF THE TERMS; (II) YOU UNDERSTAND ALL OF THE TERMS; AND (III) YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO ALL OF THE TERMS SET FORTH HEREIN.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS, YOU MAY NOT ACCESS OR USE THE FFP PLATFORM.
1. DEFINITIONS
1.1 “Company” means the entity executing these If Company is a service provider acting on behalf of another entity. Company represents that it has the right to act on behalf of its client and to bind both itself and its client to these Terms.
1.2 “First Party Data” means data sourced from Company. First Party Data may be Company’s own data or data Company licenses from a third party.
1.3 “FFP Materials” means all Third Party Data or other materials made available on the FFP Platform.
1.4 “FFP Platform” means the online data management platform through which Company may obtain Third Party Data and/or manage First Party Data which may include access to certain application programming interfaces (APIs).
1.5 “Third Party Data” means third party data on the FFP Platform, not sourced from Company.
2. FFP PLATFORM
2.1 Access to FFP Platform. Company must provide an email address and secure password to access to the FFP Platform. Company must maintain the security of those Each agent, representative, employee, or any person or entity acting on Company’s behalf with respect to the use of the FFP Platform will be subject to and will abide by this Agreement.
2.2 Suspension. If Company is in breach or default of any obligation under this Agreement, FFP may, in addition to any other rights and remedies, block or restrict Company’s access to the FFP Platform, and otherwise suspend performance under this Agreement, without liability.
2.3 Access to Third Party Data. In order to access Third Party Data through the FFP Platform, Company must be (i) granted access to specific Third Party Data by the relevant third party or (ii) have valid credentials with third party platforms and permission from the third party to access the Third Party Data. Company’s access to the applicable Third Party Data on the FFP Platform is subject to the continued approval from such third party or validity of Company’s credentials and approval on third party Company must seek approval for such access; FFP does not make any guarantee that Company will be entitled to access any specific Third Party Data.
2.4 First Party Data. Company may also provide First Party Data that it wishes to make available to other users as Third Party Data or that it wishes to remain private and only accessible to Such First Party Data may be sourced either directly from Company or from a third party that has granted Company rights to upload to the FFP Platform.
3. DATA RIGHTS
3.3 Reservation of Rights; Restrictions. The FFP Platform and FFP Materials are licensed, not sold, by FFP to Company. Company will not, and Company will not allow any or any third party to do, any of the following: (a) share, reproduce, license, distribute, publicly perform or publicly display, lease, rent, transfer, resell or otherwise dispose of the FFP Materials except as expressly set forth herein or separately permitted by a Manufacturer; (b) modify, alter or create any derivative works of the FFP Materials; (c) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the FFP Platform or FFP Materials; (d) work around any technical limitations in the FFP Platform; (e) use the FFP Platform or FFP Materials to create a competing product or service; (f) use the FFP Platform or FFP Materials other than for its intended purpose; or (g) use the FFP Materials or Platform in violation of applicable laws, regulations and self-regulatory requirements.
3.4 Data protection
Along with data encryption, FFP follows industry standards to secure our data. Data is only accessible after a user successfully signs in to the FFP platform. The system also relies on tokens and pre-signed URLs with an hour expiration for upload and download actions. These measures help prevent unintended access and provide an extra layer of security for FFP users.
3.5 Data security
FFP leverages server-side encryption with Amazon S3-managed encryption keys to encrypt data. This encryption is known as SSE-S3.
3.6 Who owns the data
FFP does not own the data that FFP account owners publish on the platform. FFP account owners who publish data via our platform have full access and control of the data they publish. FFP account owners can delete or download their data at any time with no additional cost. In addition, account owners can also revoke receiver-access to their data, even if access was granted previously.
4. FEES
4.1 Free Account. If Company has registered for a free account, no fees will be charged to Company for its use of the FFP Platform.
4.2 Paid Account. If Company is using a paid account, Company will be charged a monthly or annual fee as set forth in the Order Form.
4.3 Optional Services. Optional Services, such as export, API access, or other custom integration work, will be charged at the fees set forth in the Order Form.
4.4 Payment Terms. FFP will invoice Company on a monthly or annual basis unless otherwise set forth in an Order Form. Fees are in United States Dollars and are non-refundable. Company will pay all amounts due within 15 calendar days of Company’s receipt of the Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Company will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by FFP to collect any amount that is not paid when due. Other than federal and state net income taxes imposed on FFP by the United States, Company will bear all taxes, duties, and other governmental charges relating to Company’s use of FFP Data or the FFP Platform.
4.5 Billing Contact. Company must provide current billing contact Company is responsible for all charges due to inaccurate billing contact information.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence on the Effective Date and will continue until terminated pursuant to this Section 5.
5.2 Termination. FFP may terminate this Agreement or restrict all or part of Company’s access to the FFP Platform at any time for any reason. If Company has a paid account, such termination will be effective at the end of the month for which Company has prepaid for access. If Company is using a free account, the termination will be effective immediately. Company may cease use of the FFP Platform at any time. Company will not receive a refund of any prepaid fees.
5.3 Effect of Termination; Survival. Upon termination of this Agreement, Company will delete all FFP Materials in its possession and will, upon request from FFP, certify in writing (signed by an officer of Company) that it has done so. Any of Company’s First Party Data that was made available to other users will be removed from the FFP Platform deleted according to FFP’s standard deletion policies (except that aggregated First Party Data may continue to be used for product improvement). Sections 3.1(d), 3.3, 4.4, 5.3, 6, 7, 8, 9 and 10 and any payment obligations will survive any termination of this Agreement.
6. DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE FFP PLATFORM, FFP MATERIALS, AND ANY SERVICES PROVIDED BY FFP IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. FFP EXPRESSLY DISCLAIMS, ON ITS BEHALF AND ON ITS SUPPLIERS’ BEHALVES, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FFP OR ITS SUPPLIERS TO ANY THIRD PARTY.
7. INDEMNIFICATION
7.1 By Company. Company will indemnify, defend, and hold harmless FFP and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, incurred by FFP in connection with any actual or threatened third-party claim arising directly or indirectly from (i) Company’s or its permitted agents’ use of the FFP Platform or any FFP Materials, (ii) Company’s violation of applicable laws, rules and regulations, or (iii) any Third Party Data or other materials uploaded by Company to the FFP Platform.
7.2 Obligations. All indemnification obligations under this Agreement will be conditioned upon: (i) prompt written notice by FFP to Company of the claim for which indemnity is sought; (ii) reasonable information, assistance and cooperation by FFP, at Company’s expense, in defending or responding to the claim as the Company may request; and (iii) complete control and sole authority by Company over the defense and settlement of the claim, subject to FFP’s approval of any such settlement, which will not be unreasonably withheld or delayed.
8. LIMITATIONS OF LIABILITY
8.1 Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 3.3, COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCURRING.
8.2 General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 3, COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID OR PAYABLE BY COMPANY TO FFP UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM OR (B) $10,000.
8.3 Independent Allocations of Risk. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHERS, AND EACH WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9. GENERAL
9.1 Confidentiality. In the event that the parties have signed a mutual confidentiality or nondisclosure agreement (“NDA”), the terms and conditions of such NDA will apply to this Agreement. If no NDA is in place or the NDA terminates prior to the termination of this Agreement, the parties agree to the following: Each party agrees to retain in confidence all non-public information, trade secrets and know-how disclosed by a party pursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”). The FFP Materials are Confidential Information of FFP and/or the Manufacturers. Each party agrees to: (a) preserve and protect the confidentiality of the Confidential Information: (b) refrain from using the Confidential Information except as contemplated herein; and (c) not disclose the Confidential Information to any third party except to employees as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees). Notwithstanding the foregoing, a party may disclose Confidential Information which is: (i) already publicly known; (ii) discovered or created by a party without reference to the Confidential Information; (iii) otherwise known to a party through no wrongful conduct or (iv) required to be disclosed by law or court order.
9.2 Relationship. This Agreement will not be interpreted or construed as (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from collecting, licensing, or otherwise dealing in data or information from any third party.
9.3 Privacy. FFP will treat Company’s personal data in accordance with the terms of its Privacy Notice. By using the FFP Platform, Company agrees that FFP’s processing of its personal data complies with all privacy laws applicable to its role as a platform provider.
9.4 No Third-Party Beneficiaries. The provisions of this Agreement are for the benefit of the parties to this Agreement and not for any other person or entity.
9.5 Assignability. Company may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of FFP. Any such assignment will be void and of no force or effect. FFP may assign this Agreement without restriction. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
9.6 Notices. Any notice under this Agreement will be effective if in writing and sent by email (read receipt requested), facsimile, certified or registered mail, or insured courier, return receipt requested, to a party at its address below. Each party may update its address by notice to the other party in accordance with this section.
9.7 Force Majeure. Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control (including, without limitation, the other party’s act or failure to act).
9.8 Governing Law. This Agreement and Company’s use of FFP Data will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 N. Convention on Contracts for the International Sale of Goods. Each party hereby consents irrevocably to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington, in connection with any action arising out of or in connection with this Agreement.
9.9 Dispute Resolution; Arbitration. Any disputes between the parties arising out of this Agreement shall be resolved as follows: members of the senior management of both parties shall meet to attempt to resolve such If a dispute cannot be resolved within thirty (30) days, the dispute shall be settled by binding arbitration conducted in accordance with the JAMS procedures pursuant to its Streamlined Arbitration Rules and Procedure, by a single arbitrator, in Seattle, Washington. The arbitrator shall be selected as provided in the Streamlined Arbitration Rules and Procedure. Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort. The arbitrator shall have no power to award damages inconsistent with this Agreement. No discovery shall be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests. The result of the arbitration shall bind the parties, and judgment on the arbitrator’s award may be entered in any court having jurisdiction. Each party shall bear its own costs of the arbitration. The fees and expenses of the arbitrator shall be shared equally by the parties.
9.10 Waiver. Either party’s waiver of any breach of any provision of this Agreement does not waive any other Either party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict performance in the future.
9.11 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
9.12 Updates. These Terms may be updated from time to time. Such modifications will be effective thirty (30) days after the updated Terms are published on this If Company does not agree to the updated Terms, Company’s sole remedy will be to cease use of the FFP Platform.
9.13 Entire Agreement. This Agreement, including all terms and policies referenced in this Agreement (and an NDA, if applicable), and the terms of any order for FFP Materials under this Agreement, constitute the final and complete expression of the agreement between Company and FFP regarding their subject matter. This Agreement supersedes, and its terms govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of FFP has any authority to bind FFP with respect to any representation, warranty, or other expression unless it is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the provisions of this Agreement.
