IMPORTANT – PLEASE READ CAREFULLY. These Terms of Service (the "Terms" or "Agreement") form a binding contract between Flannel Technologies, Inc., a Delaware corporation ("Flannel," "we," "us," or "our"), you, whether for yourself or for the entity or organization that accesses or uses the Services (the "Customer," "you," or "your").
THESE TERMS CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU.
BY CREATING AN ACCOUNT, CLICKING "I AGREE" (OR A SIMILAR BUTTON OR CHECKBOX), ACCEPTING THESE TERMS IN WRITING, OR ACCESSING THE SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THE CUSTOMER. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT CREATE AN ACCOUNT, ACCESS OR OTHERWISE USE THE SERVICES. THE CONTINUED ACCESS OR USE OF THE SERVICES WILL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY THE TERMS SET FORTH HEREIN. FLANNEL MAY MAKE CHANGES TO THE CONTENT AND THE SERVICES AT ANY TIME. FLANNEL MAY CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS AND PROVIDING NOTICE ON TERMS OF SERVICE OR IN THE SERVICES.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTIONS 12.3 THROUGH 12.5 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OR CLASS ARBITRATIONS OF ANY KIND.
If Customer is provided with access to the Services on a free trial basis, Section 2.5 below will govern such access and certain of Flannel’s obligations under this MSA will not apply, as further described below.
2.1 Provision of Services.
Subject to Customer’s compliance with these Terms and timely payment of all applicable fees, Flannel grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide right to access and use the Services solely for Customer’s internal business purposes and in accordance with the Documentation. Flannel will use commercially reasonable efforts to make its online Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Flannel will inform Customer in advance), and (b) unavailability caused by circumstances beyond Flannel’s reasonable control.
2.2 Updates and Modifications.
Flannel may, from time to time, modify, update, or enhance the Services. Flannel may release new features as separately priced offerings.
2.3 Beta Services.
Flannel may make available pre-release, beta, or evaluation features or services ("Beta Services"). Beta Services are provided "AS IS" and without warranty of any kind, may be discontinued at any time, and are not subject to any service-level commitment.
2.4 AI Features and Outputs.
Certain Services include features that use artificial intelligence, machine learning, or similar technologies (collectively, "AI Features") to generate text, code, summaries, recommendations, predictions, classifications, or other content ("Outputs") in response to inputs submitted by or on behalf of Customer or its Authorized Users ("Inputs"). Customer acknowledges and agrees that:
As between the parties and subject to Customer’s compliance with these Terms, Customer retains all rights it has in its Inputs, and, to the extent Flannel has any rights in Outputs generated for Customer, Flannel hereby assigns such rights to Customer. Customer’s use of Outputs remains subject to applicable law and the AUP.
2.5 Free Trial Services.
If Customer is granted access to the Services on a trial basis (the “Trial Services”), Flannel will make the applicable Trial Services available to Customer pursuant to this Agreement starting from the time that Customer registers and is approved for such Trial Services until the earlier of: (a) the end of the Trial Services period communicated to Customer; or (b) termination by Flannel in its sole discretion (the “Trial Services Period”).
Any Customer Data that Customer provides or makes available to Flannel during the provision of Trial Services may be permanently deleted, at Flannel’s discretion, unless Customer signs up for the paid version of the Services before the end of the Trial Services Period.
Free Trial Services are provided “as-is” without any warranty and Flannel shall have no indemnification obligations nor liability of any type with respect to the Trial Services unless such exclusion of liability is not enforceable under applicable law in which case Flannel’s liability with respect to the Trial Services shall not exceed $1,000.00. Notwithstanding anything to the contrary in Section 10 below, Customer shall be fully liable under this agreement to Flannel for any damages arising out of Customer’s use of the Trial Services, any breach by Customer of this Agreement and any of Customer’s indemnification obligations hereunder.
3.1 Account Registration.
Customer must provide accurate, current, and complete information when creating an account and must maintain the security of all login credentials. Customer is responsible for all activity occurring under its account.
3.2 Restrictions.
Customer shall only provide access to the Services and its Account to its Authorized Users and Customer shall remain responsible for all activity within its Account and all acts and omissions of its Authorized Users and for ensuring that each Authorized User complies with these Terms. Customer and each Authorized User shall comply with the Acceptable Use Policy. Customer shall promptly notify Flannel of any unauthorized use of the Services or its Account or any compromise of credentials. Customer shall not (and will not authorize or allow any third party to), directly or indirectly, (i) resell, sell, license, sublicense, lease, share, transfer, copy, assign, rent or distribute, other than as expressly permitted herein, any aspect of any Service provided hereunder, (ii) reproduce; modify; create other works from; distribute; decompile; disassemble; reverse engineer; or otherwise attempt to determine the functionality of any portion of, any of the Service, Documentation, tools, software programs, platform or application programming interfaces(s) made available or accessed hereunder; (iii) use the Services or results thereof, in violation of applicable law or regulation, or this Agreement, (iv) introduce any malware, virus or other adverse computer software routine into the Services, or (v) use any Service or tools provided hereunder in a manner that exceeds reasonable request volume, or constitutes excessive or abusive usage as mutually determined by the parties.
3.3 Suspension.
Flannel may suspend Customer’s or any Authorized User’s access to the Services or its Account if (a) Flannel reasonably determines that such access poses a security, legal, or operational risk to Flannel, the Services, or any third party; (b) Customer is in material breach of these Terms (including the Acceptable Use Policy); or (c) any payment owed to Flannel is more than five (5) days past due. Flannel will use commercially reasonable efforts to notify Customer prior to or promptly after any suspension.
4.1 Fees.
Customer shall pay the fees for the Services at the rates agreed by Customer in the order form or other purchasing mechanism. Except as expressly set forth in these Terms, all fees are non-cancellable and non-refundable. Flannel may modify subscription fees, credits pricing or any other fees when it makes such updated fees and pricing available, whether on its website, within the Services or otherwise. Unless otherwise specified, revised pricing for subscription fees will apply beginning with the next renewal term following the notice period. Revised credits pricing or any other fees will become effective 30 days after Flannel makes such pricing available.
4.2 Payment.
Unless otherwise agreed by the parties in writing, fees are payable in advance and due at the time the Services are ordered for the amounts set forth via an order form or other purchasing mechanism, or if the parties have agreed to invoicing, net fifteen (15) days from the invoice date. Purchase of any credits shall be subject to the Credit Purchase Terms. Flannel uses Stripe as its third-party processor and you agree to Stripe’s privacy policy located at https://stripe.com/privacy. If a charge is declined, Flannel may reattempt collection, update payment information through account updater services, suspend Services, offset any credits (if any), or terminate the account. Customer consents to receive electronic receipts, billing notices, renewal notices, and other payment-related communications. All payments shall be made in U.S. dollars. Customer is responsible for providing and maintaining complete and accurate billing and contact information.
4.3 Recurring Payment Authorization.
Customer authorizes Flannel and its payment processors to charge the payment method associated with Customer's account for all amounts due under this Agreement, including recurring subscription fees, renewals, usage-based charges, overages, taxes, and other fees incurred by Customer. Charges may recur on a periodic basis until Customer cancels its subscription or terminates its Account in accordance with these Terms. Customer authorizes Flannel and/or its payments processor to retain and use payment credentials for future authorized transactions and to obtain updated payment information from card networks, financial institutions, and account updater services. Customer remains responsible for all charges incurred prior to cancellation becoming effective.
4.4 Late Payments.
Any amount not paid when due shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, plus all reasonable costs of collection (including reasonable attorneys’ fees). Any invoice not disputed by Customer within ten (10) days of receipt shall be deemed accepted and any rights to disputes shall be waived. Customer acknowledges and agrees it has a responsibility to review invoices to ensure that they are true, complete and correct.
4.5 Taxes.
Fees are exclusive of all taxes, levies, duties, or similar governmental assessments (collectively, "Taxes"), other than taxes imposed on Flannel’s net income. Customer is responsible for remitting all Taxes based on or arising from this Agreement, without setoff or deduction from the fees. If Flannel is legally obligated to collect or pay Taxes, Customer will reimburse Flannel for such payments, unless Customer provides Flannel with a valid tax exemption certificate.
5.1 Ownership of Customer Data.
As between the parties, Customer retains all right, title, and interest in and to Customer Data. Customer hereby grants Flannel a non-exclusive, worldwide, royalty-free license to host, copy, transmit, process, and display Customer Data solely as necessary for Flannel to provide and improve the Services and to perform its obligations under these Terms.
5.2 Customer Responsibilities.
Customer is solely responsible for the accuracy, quality, integrity, and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services. Customer represents and warrants that it has all rights, consents, and permissions necessary for Flannel to process Customer Data as contemplated by these Terms.
5.3 Security.
Each Party will maintain reasonable and appropriate data safeguards and procedures designed to prevent the unauthorized use or disclosure of Customer Data in its possession or control. Each Party will use commercially reasonable efforts to notify the other Party of any known security breach, and/or data integrity compromise, promptly after learning of said breach or compromise which could impact the other Party. Customer acknowledges and agrees that Flannel shall not be responsible for any violation, breach or liability arising from any acts or omissions relating to the integration with any third party application or service (including, but not limited to Third Party Services (as defined below).
Flannel uses a third-party provider for its storage services for Customer Data (the “Third-Party Cloud Provider”). Flannel agrees that it shall only utilize a Third-Party Cloud Provider that has a ISO 27000 certification or equivalent, or, if it fails to maintain such certification(s), Flannel shall use all reasonable efforts to promptly migrate to another Third-Party Cloud Provider that does have such certification.
5.4 Privacy and Data Processing.
To the extent Flannel processes personal data on behalf of Customer, the Data Processing Addendum shall govern such processing.
5.5 Aggregated and Anonymized Data.
Flannel may collect, use, disclose, or retain aggregated or de-identified data related to or generated from Customer’s use of, and the operation of, the Services (e.g. system performance data) for any lawful business purpose, including but not limited to improving the Services and benchmarking. Flannel retains all right, title and interest in and to such data.
5.6 No Training on Customer Data; Customer Content.
Notwithstanding anything to the contrary in these Terms, Flannel shall not, and shall not permit any Subprocessor or third party to, use Customer Data, Inputs, or Outputs (collectively, "Customer Content") to develop, train, fine-tune, evaluate, benchmark, or improve any general-purpose machine learning or artificial intelligence model, including any foundation model or large language model, except (a) as strictly necessary to provide, secure, support, and maintain the Services for Customer (for example, abuse and safety review, billing, or to respond to a support request), or (b) with Customer’s express prior written consent (which may be granted on a per-feature basis and may be revoked by Customer at any time on a prospective basis). For the avoidance of doubt, Flannel may use aggregated and de-identified data as permitted by Section 5.5, provided that such data is not used to train any model that is reasonably likely to memorize or reproduce Customer Content. Flannel’s commitments in this Section 5.6 shall flow down in substantially similar form to any Subprocessor that has access to Customer Content.
6.1 Flannel Intellectual Property.
Flannel and its licensors own all right, title, and interest in and to any and all Intellectual Property Rights in its trademarks, tradenames, as well as the Services, the Documentation, software and code, upgrades, fixes, manuals, and any other materials related to the Services, whether existing prior to, or created during, the Term, including any features, functionalities, upgrades, or the like upon request for Customer, and any other Intellectual Property Rights Flannel may have related thereto. For purposes of clarification and not of limitation, nothing herein shall be deemed a ‘work made for hire.’ No rights are granted to Customer other than as expressly set forth in these Terms, and Flannel reserves all such rights. "Intellectual Property Rights" means any and all patents, patent rights, copyrights, trade secrets, trade dress, trademarks, trade names, service marks and other intellectual property rights that may exist in the foregoing and/or embodied therein, including but not limited to any improvements, modifications, or derivative works thereof, and all applications and rights to apply for registration or protection rights pertaining thereto in any territory in the world.
6.2 Feedback.
If Customer or any Authorized User provides any suggestions, ideas, enhancement requests, recommendations, or other feedback regarding the Services ("Feedback"), Customer hereby grants Flannel a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to use and exploit such Feedback for any purpose, without obligation or compensation to Customer.
6.3 Third Party Applications.
The Services offer features designed to interoperate with third party software applications and services (“Third-Party Applications”) at Customer’s direction. If Customer chooses to use a Third-Party Application with a Service, Customer grants the rights necessary for read/write permission as for the interoperation of that Third-Party Application with the Service, which may include an API license provided by such Third-Party Application. Flannel cannot guarantee the continued availability of any Third-Party Application and is not responsible for the interoperation of Third-Party Applications with the Services. Any use by Customer of Third-Party Applications, and any exchange of data between Customer and any Third-Party Application provider, is solely between Customer and the applicable Third-Party Application provider. Flannel is not responsible for any act or omission by a Third-Party Application, including, without limitation, any disclosure, modification or deletion of Customer Data resulting from the interconnection between the Services and such Third-Party Application or the Customer’s use thereof. If Customer receives notice that a Third-Party Application must be removed, modified or disabled in connection with applicable laws or third-party rights, Customer will promptly do so to the extent Customer has control to do so. If Customer does not do so, or if Flannel reasonably believes that a violation of applicable laws or third-party rights is likely to occur or continue, Flannel may disable the Services’ ability to interoperate with such Third-Party Application. Use of the Services with the Third-Party Application is solely at Customer’s risk, including but not limited to any unintentional deletion of Customer Data within such Third-Party Application.
7.1 Definition.
"Confidential Information" means any non-public information disclosed by one party (the "Disclosing Party") to the other (the "Receiving Party"), whether orally, in writing, or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. For purposes of illustration and not of limitation, Customer Data is the Confidential Information of Customer; the Services, features, product road map, report templates, Intellectual Property Rights, Documentation, and non-public technical or business information of Flannel are the Confidential Information of Flannel.
7.2 Obligations.
The Receiving Party shall (a) use Confidential Information only to exercise its rights and perform its obligations under these Terms; (b) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information of like importance, and in no event less than reasonable care; and (c) limit access to Confidential Information to those of its personnel and advisors who have a need to know and who are bound by obligations of confidentiality at least as protective as those in this Section.
7.3 Exceptions.
The obligations in this Section shall not apply to information that (a) is or becomes publicly known through no breach by the Receiving Party; (b) was rightfully known to the Receiving Party prior to disclosure; (c) is rightfully obtained from a third party without restriction; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.4 Compelled Disclosure.
The Receiving Party may disclose Confidential Information to the extent required by law or court order, provided that, where legally permitted, it gives the Disclosing Party prompt notice and reasonable cooperation to seek a protective order or other appropriate remedy.
8.1 Mutual Warranties.
Each party represents and warrants that (a) it has the legal power and authority to enter into these Terms; (b) these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (c) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
8.2 Service Warranty.
Flannel warrants that the Services will perform materially in accordance with the Documentation. As Customer’s sole and exclusive remedy and Flannel’s entire liability for any breach of this warranty, Flannel shall use commercially reasonable efforts to correct the non-conformity. If Flannel is unable to correct the non-conformity within thirty (30) days after written notice from Customer, Customer may terminate the affected Services and receive a pro rata refund of any prepaid, unused fees for the affected Services.
8.3 Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES, DOCUMENTATION, AND ANY OTHER MATERIALS, TOOLS, CREDITS, FEATURES, FUNCTIONALITIES, ACCESS TO ANY THIRD-PARTY APPLICATIONS OR ANY AI FEATURES, AND ANY DATA PROVIDED BY FLANNEL ARE PROVIDED "AS IS" AND "AS AVAILABLE." FLANNEL AND ITS PROVIDERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. FLANNEL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
9.1 Indemnification by Flannel.
Flannel shall defend Customer against any third-party claim alleging that the Services, when used by Customer in accordance with these Terms, infringe any third party’s patent, copyright, trademark, or trade secret right (a "Customer Claim"), and shall indemnify Customer for damages and costs (including reasonable attorneys’ fees) finally awarded against Customer or paid in settlement of a Customer Claim. If the Services become, or in Flannel’s opinion are likely to become, the subject of an infringement claim, Flannel may, at its option and expense: (a) procure for Customer the right to continue using the Services; (b) modify or replace the Services to make them non-infringing; or (c) terminate the affected Services and refund any prepaid, unused fees for the affected Services. Flannel shall have no liability for any claim arising from (i) Customer Data; (ii) modifications to the Services not made by Flannel; (iii) combination of the Services with products or services not provided by Flannel; or (iv) use of the Services in violation of these Terms or the Documentation. THIS SECTION 9.1 STATES FLANNEL’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR THE THIRD-PARTY CLAIMS DESCRIBED HEREIN.
9.2 Indemnification by Customer.
Customer shall indemnify, defend and hold harmless Flannel and its officers, directors, employees and representatives from any actual, out of pocket liability or expense (including reasonable attorneys’ fees) from any third-party claim arising out of or from or related to (a) Customer Data; or (b) Customer’s or its Authorized Users’ use of the Services.
9.3 Conditions.
The indemnifying party’s obligations are conditioned on the indemnified party (a) promptly notifying the indemnifying party in writing of the claim, provided, that a failure to provide prompt notification shall only limit the indemnification to the extent the indemnifying party is prejudiced by the delay; (b) granting the indemnifying party sole control of the defense and settlement (provided that no settlement may impose a non-monetary obligation on the indemnified party without its prior written consent); and (c) providing reasonable cooperation at the indemnifying party’s expense.
10.1 Exclusion of Indirect Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FLANNEL BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, BUSINESS, GOODWILL, OR ANTICIPATED SAVINGS, ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Cap on Liability.
FLANNEL’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE LESSER OF (X) $50,000 AND (Y) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO FLANNEL FOR THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
10.3 Basis of the Bargain.
The parties acknowledge that the limitations and exclusions in this Section reflect an allocation of risk between them and form an essential basis of the bargain, and that they shall apply notwithstanding the failure of any limited remedy of its essential purpose.
11.1 Term.
These Terms commence on the date Customer first accepts these Terms, creates an Account, or first accesses or uses the Services, whichever is earlier (the "Effective Date"), and continue for the period as agreed by Customer pursuant to an order form or other ordering mechanism (typically month-long or annual). Customer may cancel through the account settings page or by contacting support at support@getflannel.ai as follows: (i) for Accounts with a monthly term, termination action must be taken not less than 30 days prior to the end of the then-current term, and (ii) for Accounts with longer than monthly, termination action must be taken not less than 60 days prior to the end of the then-current term. Cancellation will become effective at the end of the then-current billing period after the end of the notice period. Flannel may provide renewal, billing, and pricing-change notices electronically to the email address associated with Customer's account.
11.2 Termination for Cause.
Either party may terminate these Terms upon written notice if the other party (a) materially breaches these Terms and fails to cure such breach within thirty (30) days after written notice (or ten (10) days for non-payment); or (b) becomes insolvent, makes an assignment for the benefit of creditors, or becomes the subject of bankruptcy or similar proceedings.
11.3 Effect of Termination.
Upon termination or expiration of these Terms: (a) Customer’s rights to access and use the Services shall cease; (b) any unpaid fees that accrued prior to termination shall become immediately due and payable; and (c) each party shall, upon written request, return or destroy the other party’s Confidential Information in its possession, except to the extent retention is required by law or by automated backups.
11.4 Customer Data Export.
For a period of thirty (30) days following termination or expiration of these Terms, Flannel shall make Customer Data available for export in a commercially reasonable format. Thereafter, Flannel may delete or destroy Customer Data in the ordinary course, subject to applicable legal obligations.
11.5 Survival.
Sections 1 (Definitions), 4 (to the extent of any unpaid fees), 5.1, 5.5, 6, 7, 8, 9, 10, 11.4, 11.5, and 12 shall survive any termination or expiration of these Terms.
12.1 Governing Law.
These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
12.2 Dispute Resolution; Informal Resolution.
In the event of any dispute, claim, or controversy arising out of or relating to these Terms or the Services (a "Dispute"), the parties shall first attempt to resolve the Dispute informally through good-faith executive-level discussions. The party raising the Dispute shall provide the other party with a written notice describing the nature and basis of the Dispute (a "Dispute Notice"). If the parties have not resolved the Dispute within forty-five (45) days after delivery of the Dispute Notice, either party may initiate binding arbitration in accordance with Section 12.3.
12.3 Binding Arbitration.
Except as set forth in Section 12.4 (Exceptions), any Dispute that is not resolved through informal resolution shall be finally resolved by binding arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect (the "Rules"). The arbitration shall be conducted in English before a single arbitrator selected in accordance with the Rules. The seat and venue of the arbitration shall be New York County, New York, and the arbitration shall be conducted in person, by videoconference, or by such other means as the arbitrator may direct. The arbitrator shall have the authority to grant any remedy that would otherwise be available in a court of competent jurisdiction. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own attorneys’ fees and costs, except that the arbitrator may award reasonable attorneys’ fees and costs to the prevailing party to the extent permitted by applicable law.
12.4 Exceptions; Equitable Relief.
Notwithstanding Section 12.3, (a) either party may bring an individual action in any small-claims court of competent jurisdiction for Disputes within the scope of that court’s jurisdiction; and (b) either party may seek injunctive or other equitable relief in the state or federal courts located in New York County, New York to protect its intellectual property rights, confidential information, or to enforce restrictions on use of the Services, without first submitting the matter to arbitration. Each party irrevocably consents to the exclusive jurisdiction and venue of such courts for the limited purposes set forth in this Section 12.4 and waives any objection based on inconvenient forum.
12.5 Audit.
Flannel shall have the right but not the obligation to audit (including through a third-party auditor) Customer’s use of the Services to ensure Customer’s compliance with these Terms and applicable law. In relation to such audit, Flannel may request information relating to Customer’s use of the Services and Customer shall provide all reasonable information related thereto within fifteen (15) days.
12.6 Jury Trial and Class Action Waiver.
EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES. THE PARTIES FURTHER AGREE THAT ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS, AND EACH PARTY WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION, OR TO ACT AS A PRIVATE ATTORNEY GENERAL, IN ANY DISPUTE ARISING OUT OF OR RELATING TO THESE TERMS. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONSOLIDATE THE CLAIMS OF MORE THAN ONE PARTY OR TO PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. IF THIS CLASS WAIVER IS HELD TO BE UNENFORCEABLE AS TO ANY CLAIM, THAT CLAIM SHALL BE SEVERED FROM ARBITRATION AND BROUGHT IN THE COURTS DESIGNATED IN SECTION 12.4, AND ALL OTHER CLAIMS SHALL PROCEED IN ARBITRATION.
12.7 Force Majeure.
Flannel shall not be liable for any delay or failure to perform (other than payment obligations) due to causes beyond its reasonable control, including acts of God, war, terrorism, civil unrest, governmental action, labor disputes, any third-party service providers, internet or telecommunications failures, or pandemics.
12.8 Assignment.
Customer may not assign these Terms or any rights or obligations hereunder, by operation of law or otherwise, without the other party’s prior written consent. Any attempted assignment in violation of this Section is void.
12.9 Notices.
Notices under these Terms by Customer shall be in writing and delivered to 2810 N Church Street, PMB#925687, Wilmington, DE 19802, or legal@getflannel.ai or such other address as Flannel may designate), and such notices shall be deemed given (a) upon personal delivery; (b) one business day after deposit with a nationally recognized overnight courier; or (c) upon confirmation of receipt of email. Notices by Flannel to Customer may be provided on the website, within the Services or to the email address Customer has on file with Flannel, and such notices are deemed given (a) upon five (5) business days from the date posted, or (b) upon confirmation of a receipt of email.
12.10 Independent Contractors.
The parties are independent contractors. These Terms do not create any agency, partnership, joint venture, or employment relationship.
12.11 No Third-Party Beneficiaries.
There are no third-party beneficiaries to these Terms.
12.12 Compliance with Laws; Export.
Each party shall comply with all laws and regulations applicable to its performance under these Terms. Customer represents and warrants that it and its Authorized Users are not located in, organized under the laws of, or ordinarily resident in any country or territory subject to comprehensive U.S. sanctions, and are not on any U.S. government list of restricted parties. Customer shall not export or re-export the Services in violation of U.S. or other applicable export laws.
12.13 Publicity.
Flannel may identify Customer as a customer and use Customer’s name and logo on Flannel’s website and in marketing materials, subject to Customer’s trademark guidelines provided in writing.
12.14 Severability; Waiver.
If any provision of these Terms is held to be unenforceable, that provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect. No waiver shall be effective unless in writing and signed by the waiving party. A party’s failure to enforce any provision shall not constitute a waiver of future enforcement.
12.15 Modifications.
Flannel may update these Terms from time to time by posting the updated Terms and updating the "Flannel Terms of Service Effective Date” written above. It is Customer’s obligation to review these Terms from time to time for any updates located at Terms Of Service. Changes will not apply retroactively. Continued use of the Services after the effective date of the updated Terms constitutes Customer’s acceptance of the updated Terms. If Customer does not agree to the updated Terms, Customer’s sole remedy is to stop using the Services and terminate these Terms in accordance with Section 11.2.
12.16 Entire Agreement; Order of Precedence.
These Terms, together with all terms, conditions, Documentation and any other addenda or exhibits referenced herein or separately executed by the parties, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals. In the event of a conflict, the order of precedence shall be as stated herein or in the applicable terms, and if not so stated: (a) any separately executed addendum (e.g., Data Processing Addendum); and (b) these Terms. No terms or conditions stated in any Customer purchase order, vendor onboarding form, or similar document shall be incorporated into or form any part of these Terms, and all such terms are null and void.
Questions about these Terms may be directed to Flannel Technologies, Inc. at legal@getflannel.ai, or by mail to Flannel's principal place of business as published at getflannel.ai.
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