Terms of Service

Last updated: December 2, 2022

IMPORTANT – READ CAREFULLY:

ExchangeFlo, LLC (“ExchangeFlo,” “Us,” and/or “We”) provides certain services through exchangeflo.io (the “Site”) and the ExchangeFlo platform (the “ExchangeFlo Platform”). Together, the Site and the ExchangeFlo Platform and any other services that We may offer are collectively referenced as the “Services.” These Terms of Service (the “Terms of Service” or the “Agreement”) are a binding agreement between you and ExchangeFlo governing your use of and access to the Services, as of the date of your electronic sign-up (the “Effective Date”), and which shall be effective until terminated in accordance with Section 6 below. Each party is individually referred to in this Agreement as a “Party” and collectively as the “Parties.

BY PROVIDING YOUR EMAIL ADDRESS, CHECKING THE BOX “I AGREE TO THE TERMS OF SERVICE, TERMS & CONDITIONS, AND PRIVACY POLICY”, OR BY ACCESSING OR OTHERWISE USING THE SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY, AND TO ENSURE THAT YOUR EMPLOYEES, AGENTS, AND CONTRACTORS STRICTLY ADHERE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS, DO NOT ACCESS OR USE THE SERVICES.

THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER.

1. Definitions

  • “Advertiser(s)” means third-party advertisers/buyers within ExchangeFlo’s network.

  • “Agreement” means these Terms of Service.

  • “Confidential Information” means all nonpublic information disclosed by a Party to the other Party, after the Effective Date of this Agreement, that the receiving Party should reasonably understand to be confidential, including all information transmitted through or stored on or through the Services, the applicable pricing for the Services, any specific campaign terms, and any other proprietary information of a Party, whether communicated in writing or orally. Confidential Information does not include: i) information that was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure; ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party; iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement; iv) was disclosed to the receiving Party other than under an obligation of confidentiality, by a third party who had no obligation to not disclose such information; and v) information independently developed without any reference to Confidential Information.

  • “Call(s)” means an action generated by a Publisher’s marketing activities causing a consumer to place an inbound call to the applicable Advertiser.

  • “Click(s)” means an action generated by a Publisher’s marketing activities causing a consumer to click on an exit listing or other form of online advertisement, or to direct a consumer to a site owned and operated by an Advertiser.

  • “Content” means any advertising campaigns, click listings, tracking pixel, and related materials provided by an Advertiser to the ExchangeFlo Platform or through the Services.

  • “Company” means You.

  • “Company Data” means any data, information, files, website, communications, or material, including any Content which Company transmits to ExchangeFlo directly, or transmits through the Services.

  • “ExchangeFlo” means ExchangeFlo, LLC.

  • “ExchangeFlo Platform” means the dashboard and platform provided by ExchangeFlo to Company through its Site. The ExchangeFlo Platform contains an advanced suite of tools for management of Leads, Clicks, and Calls, including but not limited to analytics and reporting.

  • “Fees” means the applicable fees listed in ExchangeFlo’s Platform, or as otherwise agreed upon by the Parties, which ExchangeFlo charges to Company for its use of the Services.

  • “Intellectual Property Rights” means all patents, patent rights, inventions (whether patentable or not) design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights and derivatives thereof.

  • “Leads” means an action generated by Publisher’s marketing activities causing a consumer to complete and provide information to an Advertiser.

  • “Services” means all services provided by ExchangeFlo to Company, including provision of access and use of the Site to Company; provision of access and use of the ExchangeFlo Platform to Company, including campaign performance metrics (pixel tracking and reporting information); any related support services to Company; and any additional services agreed upon by the Parties. In the case of Advertisers, “Services” shall include the ability to submit their Content to the ExchangeFlo Platform; create and manage their advertising campaigns; and the generation of Clicks, Calls, and/or Leads by Publishers for Advertisers and display of Click listings or other form of online advertisements.

  • In the case of Publishers, “Services” shall include the provision of Content from ExchangeFlo’s Advertisers through the ExchangeFlo Platform for the purpose of generating Clicks, Calls, and/or Leads.

  • The Services provided hereunder shall be used by Company strictly in accordance with this Agreement. The Services are subject to change at any time without notice.

  • “Site” means exchangeflo.io.

  • “Terms of Service” means this Agreement.

2. Sign-up. To use or access the Services, you must complete the sign-up process by providing the complete and accurate information requested on the sign-up form. You must be at least 18 years of age to use the Services. By agreeing to these Terms of Service, you represent and warrant that: (i) you are at least 18 years of age; and (ii) if you are an entity, organization, or company, the individual accepting this Agreement has the authority to bind such an entity, organization, or company to this Agreement.

3. Services. Subject to Company’s material compliance with this Agreement and as may be applicable, payment of all Fees for the Services, ExchangeFlo may provide Company with the Services.

  • For Advertisers/Buyers: Company may sign-up to access the ExchangeFlo Platform and receive the Services, allowing Advertisers/Buyers to submit their Content, and create and manage their advertising campaigns. ExchangeFlo agrees to use commercially reasonable efforts to protect any Company Data, including any personal information, from breach, loss, or other unauthorized disclosure; to detect software viruses and other undesirable components; and to promptly take all reasonable steps to remove or neutralize any such components however it is Company’s responsibility to regularly back up Company Data and ExchangeFlo disclaims all liability for any loss of Company Data. In addition, Company acknowledges that hackers or other persons with malicious intent may attempt to access, interrupt, or interfere with ExchangeFlo Platform and the Services and agrees that ExchangeFlo shall not be responsible or liable for such third party actions.

  • For Publishers: Company may sign-up to access the ExchangeFlo Platform and receive the Services, allowing Publishers access to its Advertisers’ Content for the purpose of purpose of generating Clicks, Calls, and/or Leads for ExchangeFlo’s Advertisers.

4. Company Responsibilities; Company Representations and Warranties. As a condition of Company’s use of the Services, Company represents and warrants that:

  • It has the legal power and authority to enter into this Agreement;
  • It is solely responsible for its use of and all activity occurring under its ExchangeFlo Platform account and through the Services;
  • It is responsible for maintaining the security of its ExchangeFlo Platform account login and password. Company agrees that it will immediately notify ExchangeFlo if it becomes aware of any unauthorized or improper use of the Services, or any loss or theft or unauthorized use of Company’s account information;
  • It will abide by all applicable laws, treaties, regulations, and third party rights in connection with its use of the Services, including, without limitation, those related to Intellectual Property Rights, spam, data privacy, international communications, and the transmission of technical or personal data exported from its country of residence;
  • It will not upload, download, display, perform, transmit, or otherwise distribute Content in violation of any third party’s Intellectual Property Rights;
  • It shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all Company Data stored and/or transmitted through the Services;
  • It will use the Services carefully, consistent with all commercially reasonable precautions to prevent any loss or damage to the Services. If any unauthorized or improper access or use occurs, Company agrees to take all necessary action to stop such unauthorized or improper access or use. Company agrees that ExchangeFlo shall not be responsible or liable for any deletion, destruction, damage or loss of any Company Data;
  • It will be responsible for maintaining archival and backup copies of any data stored on the ExchangeFlo Platform and/or through the Services, including its Company Data;
  • In connection with its use of the Services, Company will not (and will not attempt to):
    • License, sublicense, rent, sell, resell, transfer, assign, distribute, demonstrate, provide access to, allow third party use of its login and password, or otherwise make the Services available to any third party;
    • Duplicate, adapt, modify, translate, disassemble, decompile, reverse engineer, or create any derivative works, improvements or enhancements to the ExchangeFlo Services, or permit or assist any third party to do so;
    • Transmit, promote, store, send, or use on or through the use of the ExchangeFlo Services any infringing, illegal, abusive, obscene, vulgar, pornographic, threatening, harassing, defamatory, libelous, harmful, or otherwise unlawful or tortious material, including, without limitation, material that is harmful to children, violates third party privacy rights, or is racially, ethnically, politically, or otherwise objectionable;
    • Use the ExchangeFlo Services for any unlawful or illegal purposes, including but not limited to misleading any person as to the identity, source, or origin of a communication, or to impersonate another person or entity;
    • Interfere with or disrupt the integrity or performance of the Services, or their availability to other third parties;
    • Violate any security features of the Services, or gain unauthorized access to the Services, or ExchangeFlo’s related systems, servers, or networks;
    • Probe, scan, or test the vulnerability of the Services, or any associated system or network, or to breach security or authentication measures without proper authorization;
    • Interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Services, or any associated system or network, or through the Services, overload, “flood,” “spam,” “mail bomb,” or “crash”;
    • Transmit, promote, upload, store, use, or send material on or through the Services containing viruses, worms, Trojan horses, malware, spyware, or other harmful computer code, files, scripts, agents or programs;
    • Change the default settings of the Services, or engage in any bulk emailing, sending of unsolicited email in violation of any applicable law/spam;
    • Forge any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services;
    • Engage in any infringement of Intellectual Property Rights;
    • Utilize botnets, grabbing, phishing, or any illegal content or software;
    • Utilize torrent-clients and trackers;
    • Engage in DDos attacks;
    • Utilize open proxy, open VPN, or open DNS resolving services;
    • Utilize network scanners, proxy-checkers or other similar software; or
    • Take any action to limit or interfere in any way with ExchangeFlo’s ownership of or rights with respect to the Site, the ExchangeFlo Platform, the Services, and/or any ExchangeFlo’s Intellectual Property.

5. Alleged Violations. ExchangeFlo reserves the right to terminate your account and use of the Services immediately, with or without notice to you, and without liability to you, if ExchangeFlo believes that you have violated this Agreement, furnished ExchangeFlo with false or misleading information, or interfered with use of the Site, ExchangeFlo Platform, and/or the Services by others. Moreover, any violation of a system or network security may subject you to civil and/or criminal liability.

6. Term and Termination. Unless otherwise agreed upon by the Parties, the term of this Agreement shall commence on the Effective Date and continue until terminated by either Party. ExchangeFlo may suspend and/or terminate Company’s access to the Services: (a) for any reason by providing Company with at least thirty (30) days prior written notice, with termination effective thirty (30) days after the notice is given; or (b) immediately, if in ExchangeFlo’s sole discretion, Company has breached any provision of this Agreement, or is otherwise required by law to do so. Company may terminate this Agreement for any reason by providing ExchangeFlo with at least thirty (30) days prior written notice, with termination effective thirty (30) days after the notice is given. Notice may be given to ExchangeFlo via email at @.com, or to Company at the email address provided at the time of its sign-up for the Services. Upon termination of this Agreement, Company shall discontinue all use of the Services. Company may request reports from ExchangeFlo containing Company Data for a limited period of thirty (30) days after termination.

7. Fees. As a condition of Company’s use and access to the Services, Company agrees to pay all applicable Fees, including but not limited to any telephone carrier fees for calls and telephone carrier fees related to issuance of a unique “DID”/phone number. Company agrees to pay ExchangeFlo the applicable Fees, in addition to any required taxes. Unless otherwise stated, all fees are stated in U.S. Dollars. ExchangeFlo currently accepts payment via credit card or ACH through third party payment processor Stripe. By providing any credit card information via the ExchangeFlo Platform, Company represents that it is authorized to use the card and authorizes ExchangeFlo’s third party payment processor to charge the card for the Fees in accordance with this Agreement. By submitting payment information, Company authorizes ExchangeFlo to provide such information to its third party payment processor for purposes of facilitating and processing payment. Company agrees to verify any information requested by ExchangeFlo or its third party payment processor for purposes of acknowledging or completing any payment. All credit/charge card payments are subject to authorization by the card issuer. Upon termination of this Agreement, Company shall be responsible for payment of any amounts which Company owes to ExchangeFlo under this Agreement. Company’s use of the Services may be suspended in the event that Company’s payment fails.

8. ExchangeFlo Representations & Warranties. ExchangeFlo represents and warrants that it: a) it has the legal power and authority to enter into this Agreement; b) has the right and authority to make the Services available to Company as authorized expressly by this Agreement; and c) will provide the Services in a manner consistent with general industry standards.

9. Use of Identifying Information. Company acknowledges and agrees that if ExchangeFlo reasonably determines that disclosure of Company’s personal information or Company Data is necessary to comply with any law, rule order, subpoena, civil or criminal investigative request or demand, discovery request or any other legal requirement, or in response to a complaint or inquiry, that ExchangeFlo may disclose information, including any Confidential Information, to comply with such request. If necessary, ExchangeFlo may share your personal information which you provide with our affiliates, outside accounting firms, legal counsel, state and federal tax services and any government or law enforcement agency that requests such information. Company further agrees that ExchangeFlo may identify Company as a Company on the Site, the ExchangeFlo Platform, and on any of ExchangeFlo’s promotional material, and use its logo for such limited purposes.

10. Intellectual Property Ownership. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by ExchangeFlo or any third party. The Site and the ExchangeFlo Platform are copyright protected. Company acknowledges and agrees that ExchangeFlo owns all right, title, and interest in and to the Site, the ExchangeFlo Platform, and the Services, including, without limitation, any derivatives, improvements, enhancements or extensions conceived, reduced to practice or otherwise developed by ExchangeFlo, together with all Intellectual Property Rights relating thereto. ExchangeFlo also expressly reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, its right to enter into other agreements with other third party regarding the Site, the ExchangeFlo Platform, and the Services. This Agreement is not a sale - ExchangeFlo does not convey any ownership rights to Company, including but not limited to, any rights of ownership in the Site, the ExchangeFlo Platform, and the Services, and/or any related ExchangeFlo Intellectual Property. Company’s rights hereunder are strictly limited as set forth herein. Company acquires no right, title, or interest therein other than the right to use the Site, the ExchangeFlo Platform, and the Services and/or any related ExchangeFlo Intellectual Property in accordance with this Agreement. Company hereby assigns to ExchangeFlo all right, title and interest in and to any improvements, enhancements, derivations or modifications to the Site, the ExchangeFlo Platform, and the Services developed, in whole or in part, as a result of Company’s use of the Site, the ExchangeFlo Platform, and the Services, or any ideas, suggestions, feedback, comments, or reports received from Company.

11. Confidentiality. Company acknowledges that the ExchangeFlo Platform, the Services, and the ExchangeFlo Intellectual Property contain valuable trade secrets and Confidential Information, including but not limited to, the architecture and functionality of the Services, and the appearance, organization, design, content, and flow of such. ExchangeFlo acknowledges that Company may maintain Confidential Information on the ExchangeFlo Platform and may exchange such with other users of the Services, like Advertisers and Publishers. Except as otherwise specified herein, each Party agrees not to share, disclose, or transfer, and not to permit a third party to share, disclose, or transfer any Confidential Information. The Parties will use reasonable diligence to prevent the unauthorized disclosure, reproduction or distribution of any Confidential Information exchanged hereunder to any third party. In the event that the receiving Party is obligated to produce Confidential Information under applicable law or pursuant to governmental request or order of a court of competent jurisdiction, to the extent it is permitted to do so, it will promptly notify the disclosing Party of such an event so that the disclosing Party may seek an appropriate protective order.

12. Disclaimer of Warranties. THE REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT ARE EXCHANGEFLO’S COMPLETE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES. EXCHANGEFLO DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTIES OF ANY KIND. EXCEPT AS PROVIDED HEREIN, THE SITE, Services, AND any Intellectual Property ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. EXCHANGEFLO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, THE EXCHANGEFLO PLATFORM, OR THE SERVICES; TITLE OR NON-INFRINGEMENT OR THIRD PARTY RIGHTS; ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE THAT THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE SERVICES WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS; THAT THE SERVICES ARE ERROR FREE OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; THAT THE SERVICES AS USED BY COMPANY COMPLY WITH APPLICABLE LAW; OR THAT THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCHANGEFLO DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS COMPANY MAY OBTAIN BY USING THE SERVICES. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE MADE BY EXCHANGEFLO WITH RESPECT TO THE SERVICES, COMPANY’S USE THEREOF, OR ANY OTHER SERVICE PROVIDED UNDER THIS AGREEMENT. BY USING THE SERVICES, YOU CONSENT TO THE TRANSFER OF SUCH INFORMATION TO COUNTRIES OUTSIDE OF YOUR COUNTRY OF RESIDENCE, WHICH MAY HAVE DIFFERENT DATA PROTECTION RULES THAN THOSE OF YOUR COUNTRY. EXCHANGEFLO MAKES NO REPRESENTATION THAT THE SERVICES ARE AVAILABLE OR APPROPRIATE FOR USE IN YOUR LOCATION. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE THE SERVICES. EXCHANGEFLO EXPRESSLY DISCLAIMS ANY INDEMNIFICATION FOR ANY CLAIMS OR ACTIONS BROUGHT AGAINST COMPANY BASED ON, OR AS A RESULT OF, OR IN CONNECTION WITH ANY INACURRACY, OMISSION, DEFECT OR MISTAKE IN THE SERVICES, OR COMPANY’S USE THEREOF. EXCHANGEFLO’S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EXCHANGEFLO BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. THE MAXIMUM AGGREGATE LIABILITY OF EXCHANGEFLO ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER BASED ON CONTRACT OR TORT SHALL NOT EXCEED $100.

13. Indemnity. You agree to indemnify ExchangeFlo for Company’s acts and omissions. You agree to indemnify, defend, and hold harmless ExchangeFlo, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Site, the ExchangeFlo Platform, and/or the Services, your violation of this Agreement, or your infringement, or infringement by any other user of your account, of any Intellectual Property or other right of any person or entity. ExchangeFlo will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost. You shall cooperate as fully as reasonably required in defense of any such claim. ExchangeFlo reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

14. Third Party Websites. ExchangeFlo has no control over, and no liability for any third party websites or materials, including any Company Data, that may be accessible through the Services, and therefore ExchangeFlo makes no guarantees about the accuracy, currency, content, or quality of such. ExchangeFlo assumes no responsibility for any unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on third party websites. Similarly, from time to time in connection with your use of the Site, you may have access to content items (including, but not limited to, websites) that are owned by third parties. You acknowledge and agree that ExchangeFlo makes no guarantees about, and is not responsible for, the accuracy, currency, content, or quality of such, and that, ExchangeFlo is not affiliated with any third party that you may link to through the Site, the ExchangeFlo Platform, and/or the Services. You expressly agree to indemnify ExchangeFlo from any claims you may have against a third party that you linked to or accessed via the Site, the ExchangeFlo Platform, and/or the Services.

15. Export Control. The Parties acknowledge that the Services are or may be subject to export laws and regulations of the United States and the destination country(ies) and any use or transfer of such must be authorized under all applicable laws. Company agrees to comply with the export laws and regulations of the United States.

16. Due Diligence. In order to combat illegal activity, ExchangeFlo may perform periodic due diligence checks on Company, and Company acknowledges and authorizes ExchangeFlo, including its employees, representatives, and agents, to perform due diligence on Company, including obtaining, verifying and retaining Company information and documentation.

17. Electronic Communications and Notices. ExchangeFlo may give notice to Company via email sent to Company’s email address provided at the time of its sign-up for the Services. Further, unless Company opts out, ExchangeFlo may contact Company via email in the future regarding its account, promotions, and related services that may be of interest to Company. Company may opt-out of receiving promotional email through the opt-out link included in the email, or by sending a request for removal to ExchangeFlo. ExchangeFlo will try to comply with Company’s request as soon as reasonably practicable. If Company opts-out of receiving promotional emails from ExchangeFlo, ExchangeFlo may still send Company emails for administrative or other purposes directly relating to Company’s account and its use of the Services. Notice may be given to ExchangeFlo via email at @.com.

18. Privacy Policy. ExchangeFlo respects your privacy and permits you to control the treatment of your personal information. A complete statement of ExchangeFlo’s current Privacy Policy can be found by clicking HERE. ExchangeFlo’s Privacy Policy is expressly incorporated into this Agreement by this reference.

19. Force Majeure. Neither Party shall be liable for any delays or any failure in performance under this Agreement due to causes beyond the reasonable control of the non-performing Party. Such delays include, but are not limited to, fire, explosion, pandemic, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party.

20. Relationship of Parties. The Parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture, employment, or agency relationship between the Parties. Neither Party shall be entitled to contract on behalf of the other or bind the other Party in any way.

21. Assignment. Company may not assign this Agreement, or any of its rights or obligations hereunder, without ExchangeFlo’s prior written consent. However, ExchangeFlo shall have the right to assign this Agreement and all of its rights and obligations hereunder without Company’s consent to a parent or subsidiary; an acquirer of assets or equity in the Services; or a successor in interest by merger. Any purported assignment in violation of this section will be void.

22. Governing Law; Class Action Waiver; Binding Arbitration.

  • Governing law: This Agreement shall be governed by and construed according to the laws of the state of Massachusetts, without regard to principles of conflict of laws.
  • No class actions: The Parties agree that each may bring claims against the other only in their individual capacity and not as a plaintiff of class member in any purported class or representative proceeding.
  • Binding Arbitration: Except for injunctive relief claims, any claim or controversy arising out of or related to this Agreement or the interpretation, making, performance, breach, validity or termination thereof, and/or the use of the Services shall be settled by binding arbitration by JAMS in accordance with its Commercial Arbitration Rules. The place of arbitration shall be in Boston, Massachusetts. Arbitration hereunder shall be conducted by one neutral arbitrator appointed by JAMS. At the request of either Party, the arbitrator will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In no event shall the arbitrator have any authority to award punitive or other damages not measured by the prevailing Party’s actual damages, except as may be required by statute. The arbitrator shall not determine or award any alternative allocation of costs and expenses, including any attorney’s fees, unless a statute or contract at issue specifically authorizes such an award. The Parties’ respective responsibilities to pay any JAMS filing, administrative, and arbitrator fees will be solely in accordance with the JAMS Rules. Except as otherwise provided herein and irrespective of the outcome of arbitration, each Party shall bear its own costs and expenses, including its own attorney’s fees. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof. The Parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THAT THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Publisher agrees and submits to the personal jurisdiction and venue of any such court of competent jurisdiction. In the event that this arbitration clause is deemed to be invalid or otherwise unenforceable or illegal, the remaining terms shall remain in full force and effect.

23. Severability. Each provision of this Agreement is intended to be severable and the validity, legality, or enforceability of any provision of this Agreement shall not affect the validity, legality, or enforceability of the remainder of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.

24. Waiver. The failure of ExchangeFlo to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by ExchangeFlo in writing.

25. Modifications. ExchangeFlo may, in its sole discretion and without prior notice, (a) revise these Terms of Service; (b) modify the Site, the ExchangeFlo Platform, and/or the Services; and (c) discontinue the Site, the ExchangeFlo Platform, and/or the Services at any time. ExchangeFlo shall post any revision to these Terms of Service to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms of Service and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.

26. Construction. The headings in this Agreement are inserted for convenience only and will not constitute a part hereof. For purposes of this Agreement: a) any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the construction or interpretation of this Agreement; b) the words “include” and “including” and variations thereof, are not terms of limitation, but rather will be deemed to be followed by the words “without limitation;” and c) references to “dollars” or “$” refer to the lawful currency of the United States.

27. E-Sign Consent. By clicking “I agree to the Terms of Service, Terms & Conditions, and Privacy Policy”, Company adopts such as its electronic signature, and consents and agrees that ExchangeFlo may provide Company with electronic communications and disclosures (collectively, “Communications”) via email at Company’s email address provided at the time of its sign-up for the Services, or by making them accessible on the ExchangeFlo Platform and/or Site; and that Company’s electronic signature on agreements and documents has the same effect as if Company signed them in writing. If Company wishes to revoke/withdraw its consent at any time, please contact Us at @.com. Withdrawal of consent may result in termination of Company’s access to the Services. Any withdrawal will be effective only after a reasonable period of time for ExchangeFlo to process the withdrawal. As noted above, Company is responsible for providing ExchangeFlo with true and accurate information, including its contact information. To access and retain the Communications, the following are required: computer or mobile device with access/use of the internet or mobile connectivity and an operating system capable of receiving, accessing, and displaying Communications; a supported internet browser; sufficient storage space to save Communications and/or a printer to print them; and a valid email account and software to access such email account. Company has the right to receive Communications in paper form. Please contact Us at @.com. to request a paper copy of any Communications at no charge. A request will not be treated as a withdrawal of consent to receive electronic Communications.

28. Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous negotiations, discussions or agreement, whether written or oral, between the Parties regarding the subject matter contained herein.

29. Acknowledgement. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF SERVICE AND AGREE TO BE BOUND BY THEM.