Terms of Service
Last Updated: May 30, 2013
Flint Mobile, Inc. (“Flint,” “we,” “our” or “us”) provides a payment processing service that allows businesses (“Merchants”) to accept payments from their customers (“Consumers”). We call our payment processing service the “Flint Service.” This user agreement (“Agreement“) governs your use of the Flint Service, the Flint Mobile Pay application, associated software and the related web sites (together, the “Service”) regardless of how you access them. Please read this Agreement carefully. This Agreement is divided into four parts. Part I explains the Service and general terms that apply to both Merchants and Consumers. Part II explains the terms that govern your use of the Service if you are a Merchant. Part III explains the terms that govern your use of the Service if you are a Consumer. Part IV contains additional legal terms that apply to both Merchants and Consumers, including provisions that limit our liability to you and require individual arbitration for any potential legal dispute. In all cases, this Agreement governs your use of our web sites. To access and use the Service, you must accept all of the terms of this Agreement
Part I: GENERAL TERMS
The Service processes payments, including credit and debit card-based payments, initiated with cards bearing the trademarks of American Express Company, Discover Financial Services, MasterCard International Inc. and Visa Inc. (collectively, the “Card Associations”). The Service works with US-issued credit and debit cards with a Visa, MasterCard, Discover, and American Express logo (“Card(s)”). We may remove or add Cards that we accept at anytime without prior notice. We will only process Cards that receive an authorization from the applicable Card Association or card issuer.
Card Association Rules
The Card Associations require that we and you comply with all applicable bylaws, rules, and regulations (“Card Association Rules”). The Card Associations have historically reserved the right to amend their rules and regulations. We may be required to change this agreement in connection with amendments to the Card Association Rules. Significant portions of the Card Association Rules are available to the public at usa.visa.com, www.mastercard.com, www.americanexpress.com, and www.discover.com.
Restrictions on Use
You may use the Service only to the extent that you obey all laws, rules, and regulations applicable to your use of the Service. You may not act as a payment intermediary, aggregator or service bureau or otherwise resell our Service on behalf of any third party. This means that you may not use the Service to handle, process or transmit funds for any third party. You also may not use the Service to process cash advances.
Unauthorized or Illegal Use
We may decide not to authorize or settle any transaction that you submit to us if we believe that the transaction is in violation of any agreement with us, or exposes us, our processors, you or other users of the Service to harm. Harm includes fraud and other criminal acts.
Ownership and License
The Service is licensed and not sold. We and our partners reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We and our partners own all rights, title, interest and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to our trademarks or service marks.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to make, accept and receive payments and to manage the funds you so receive, in accordance with this Agreement.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our other products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
Your Privacy and the Privacy of Others
By using the Services, you may receive information about payers or other users. You agree to (a) keep such information confidential; for example, not disclose it to third parties, (b) only use it in connection with the Service and (c) comply with all applicable laws and regulations, including, without limitation, privacy and data protection laws and regulations.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will not be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide such information at your own risk.
Part II: TERMS FOR MERCHANTS
Your Flint Mobile Account
You must open an account with us (a “Flint Mobile Account”) in order to use our Service. Our registration process will ask you for information including your name and other personal information. You must provide accurate and complete information in response to our questions. You must also keep your account information up-to-date. You must choose a reasonably descriptive business name that clearly identifies you or your business. This text will appear on the payer’s credit or debit card statement. You agree to bear any costs for any transaction disputes resulting from your failure to use a reasonably descriptive business name.
After activation of your Flint Mobile Account, you will be asked to complete your user profile including providing your bank account information for automatic deposits of funds. You must complete this in order to access any funds that you accept through the Service. If you accept a payment prior to providing your bank account information, we will deposit related funds after you provide your auto deposit information.
The Service and your Flint Mobile Account may only be used in the fifty states of the United States of America and the District of Columbia. You may not export the Service directly or indirectly, and you acknowledge that the Service may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
You may not use the Service to accept payments in connection with any of the activities or businesses listed below. By accepting this Agreement, you confirm that you will comply with these requirements.
• Adult entertainment oriented products or services
• Selling goods or services that represent a violation of any Local, State or Federal law
• Any merchant operating outside the United States
• Collection Agency
• Cruise Line
• Credit Counseling
• Credit Protection or ID protection service
• Debt Elimination or Reduction service
• Distressed Property Sales and Marketing
• Tobacco Sales
• Hate Products
• Firearm or weapon sales
• Drug paraphernalia
• Multi-Level Marketing programs
• Rebate or upsell Programs
• Timeshare resales and marketing
• Membership clubs
• Outbound telemarketing
• Inbound videotext telemarketing
• Direct Marketing for Continuity or Subscription services
• Submitting sales for payment that results from another entity that provided goods or services to the cardholder
• Script dispensing terminals
• Household purposes where the purchaser is not a customer
If your request to open a Flint Mobile Account is approved, we may request additional identification from you at any time. We may ask you to present invoices from your suppliers, a government issued identification such as a passport or driver’s license, a business license, customer receipts, or other documentation. We may also ask for permission to inspect your business location. If you refuse any of these requests, your Flint Mobile Account may be terminated. We reserve the right to suspend or terminate your Flint Mobile Account if you do not reasonably satisfy identity verification criteria.
Compatible Mobile Devices
Your Flint Mobile Account permits you to accept payment card transactions on a compatible mobile device. Devices modified contrary to the manufacturer’s software or hardware guidelines, including but not limited to disabling hardware or software controls—sometimes referred to as “jailbreaking”—are not compatible mobile devices. You acknowledge that the use of a modified device to use the Service is expressly prohibited, constitutes a violation of the terms of this agreement, and is grounds for termination of your Flint Mobile Account. We do not warrant that the Service will be compatible with your mobile device or third party carrier. Your use of the Service may be subject to the terms of your agreements with your mobile device manufacturer and your carrier.
We are not a bank, and we do not offer banking service as defined by the United States Department of Treasury. We also do not offer money service business (“MSB”) as defined by the United States Department of Treasury.
As a merchant payment processor, we process payments you receive from Consumers. This means that we collect, analyze and relay information generated in connection with these payments. In order to serve in this role, we must enter into agreements with Card Associations, other processors and banks. Some of these third parties require that account holders processing over $100,000/year enter into an additional agreement with us and our payment processors and other third parties. If you are such a user, we will provide you a “Commercial Entity Agreement” that you must complete in order to use the Service.
By accepting the terms of this Agreement, you specifically authorize us, for as long as you have an active Flint Mobile Account, to:
• Request identity verifying information about you, including a consumer credit report that contains your name and address. We may periodically obtain additional reports to determine whether you continue to meet the requirements for a Flint Mobile Account;
• Share information about you and your Flint Mobile Account with our processor;
• Contact and share information about you, your application for a Flint Mobile Account (including whether you are approved or declined) and your Flint Mobile Account with your bank or other financial institution. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct our risk management process;
• Hold, receive, disburse and deduct funds from your Flint Mobile Account and bank accounts on your behalf; and
• To share information about you, your Flint Mobile Account, and any of your transactions with law enforcement if we reasonably suspect that your Flint Mobile Account has been used for an unauthorized, illegal, or criminal purpose.
Applicable Card Association Rules
You acknowledge that (y) all Card transactions are processed as “card not present” transactions, even where the Consumer is at the physical point of sale and (z) under the Card Association Rules, a buyer has different Chargeback rights for “card not present” transactions than for transactions where the buyer physically presents the card to the seller.
We will review some or all of the information that you submit in connection with your request to sign up for the Service. We may forward such information on to its processor. After you submit your application, we or our processor may conclude that you will not be permitted to use the Service.
We may impose various transaction limits and rules to protect itself and others. If you believe that the transaction limits are interfering with your business, please contact our support to request higher limits. We may require more information about your business to evaluate your request and will decide at its sole discretion whether to honor such requests. We will consider a variety of factors in making its decision, including but not limited to a proprietary set of rules, Chargeback rates, transaction behavior, and other supplemental data about your business.
You agree to pay the applicable fees listed below when you use the Service (“Fees”). These Fees are charged at the time we process a transaction and are deducted first from the transferred or collected funds [in your Flint Mobile Account balance]/[and] prior to deposit of funds into your bank account.
• Transaction Fees:
o Visa, MasterCard, American Express, and Discover Debit Card Processing: 1.95% per transaction
o Visa, MasterCard, American Express, and Discover Credit Card Processing: 2.95% per transaction
Subject to the terms of this Agreement, we reserve the right to change our Fees. If we change our Fees, we will give you fifteen (15) days notice of any change. You will not be permitted to continue to use the Service without accepting the change in Fees. All balances and all Fees, charges, and payments collected or paid through the Service are denominated in US dollars.
Access to Your Funds
Subject to the payout schedule stated below, our merchant bank partner will deposit to your bank account the amounts actually received by us for transactions submitted through the Service (less any applicable Fees). We reserve the right to revise our payout schedule. Once your US bank account information is verified, we will automatically initiate a payout to your designated bank account at the end of every business day except as provided below. Payouts to your bank account will normally register within 2-3 business days subject to your bank’s policies.
If you process more than $1,000 during any trailing seven day period, we may defer depositing the amount in excess of $1,000 for 30 days.
Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we or the designated financial institutions have accepted the transaction or funds. You are responsible for monitoring your transactions and ensuring that our payments to you are correct. You must notify us of any errors in payments made to you within sixty (60) days of the error first appearing on your electronic transaction history. Failure to notify us of such an error will be deemed a waiver of any right to amounts owed to you.
Restrictions on Availability of Funds
Should we need to conduct an investigation or resolve any suspicious activity or pending dispute related to your Flint Mobile Account, we may defer payout or restrict access to your funds for the entire time it takes for us to do so. We also may defer payout or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
The amount of a transaction may be reversed or charged back to your bank account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Associations, our processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Service. To that end, you permit us to share information about a Chargeback with the payer, the payer’s financial institution, and your financial institution in order to investigate and/or mediate a Chargeback. We will request necessary information from you to contest the Chargeback. If the Chargeback is contested successfully, we will release the reserved funds to your Flint Mobile Account. If a Chargeback dispute is not resolved in your favor by the Association or issuing bank or you choose not to contest the Chargeback, we may recover the Chargeback amount and any associated fees as described in this Agreement. You acknowledge that your failure to assist us in a timely manner when investigating a transaction, including providing necessary documentation within fifteen (15) days of our request, may result in an irreversible Chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating Chargeback disputes.
Our Collection Rights for Chargebacks
For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve (defined below). We may deduct the amount of any Chargeback and any associated Fees, fines, or penalties assessed by the Card Association or our processor from your bank account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay payouts to your bank account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds, (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all Flint Mobile Account deficit balances unpaid by you.
If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your Flint Mobile Account, including without limitation, by (a) establishing new processing Fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts and (d) terminating or suspending your access to the Service.
If we have reasonable suspicion of misuse, we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in a separate reserve account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks or refunds, or other indications of performance problems related to your use of the Service. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, returns, unshipped merchandise and/or unfulfilled products or services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or our processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your Flint Mobile Account, including but not limited to any funds (a) due to you under this Agreement or (b) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your bank account.
Our Set-Off Rights
To the extent permitted by law, we may set off against any balance in your Flint Mobile Account for any obligation you owe us under this Agreement, including without limitation any Chargebacks. If you owe us an amount that exceeds the balance in your Flint Mobile Account, we may charge or debit a payment instrument registered in your Flint Mobile Account. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, collection agency fees, and any applicable interest of the highest amount allowable by law.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection your use of our software and Service (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority.Our processor will report annually to the Internal Revenue Service (“IRS”), your name, business name, address, Tax Identification Number the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
You must make a written receipt available to your customers for any transaction greater than fifteen dollars ($15.00). You may give your customers the option to receive or decline a written receipt. As a convenience, but not in lieu of a written receipt, you may also offer electronic receipts for delivery through email to your customers. Your receipt must comply with State and Federal consumer laws.
You are solely responsible for all customer service issues relating to your goods or services, including pricing, order fulfillment, order cancellation by you or customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback, reviews, or ratings concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to your Flint Mobile Account.
Refunds and Returns
By accepting Cards with Flint Mobile Pay, you agree to process returns, and provide refunds and adjustments for, your goods or services through your Flint Mobile Account in accordance with this Agreement and Card Association Rules. Card Association Rules require that you will (a) maintain a fair return, cancellation or adjustment policy, (b) disclose your return or cancellation policy to customers at the time of purchase, (c) not give cash refunds to a customer in connection with a Card sale, unless required by law and (d) not accept cash or any other item of value for preparing a Card sale refund. The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the customer for postage that the customer paid to return merchandise. If you accept returns and are making an uneven exchange of merchandise (e.g., the sales price is not the same), you must issue a credit for the total amount of the merchandise being returned and complete a new sale for any new merchandise. Please be aware, if your refund policy prohibits returns or is unsatisfactory to the buyer, you may still receive a Chargeback relating to such sales. You can process a refund through your Flint Mobile Account up to sixty (60) days from the day you accepted the payment. If the balance in your Flint Mobile Account is insufficient to cover the refund, we will withdraw up to the requested refund amount from your bank account and credit it back to your customer’s Card. Transaction Fees are also refunded, so the full purchase amount is always returned to your customer. We have no obligation to accept any returns of any of your goods or Service on your behalf.
We provide you an online transaction history of all of your authorized transactions. Except as required by law, you are solely responsible for (a) compiling and retaining permanent records of all transactions and other data associated with your Flint Mobile Account and your use of the Service and (b) reconciling all transactional information that is associated with your Flint Mobile Account.
We will attempt to rectify processing errors that we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, we will credit your bank account for the difference. If the error results in your receipt of more than the correct amount to which you were entitled, we will debit the extra funds from your bank account. We will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
In connection with registration for a Flint Mobile Account, you may upload content such as website URLs, logos, social network links, photos or other materials or information to the Service (“User Content”). You agree that you will not upload User Content to the Service unless you have created that content yourself, or you have permission from the copyright owner to do so. By uploading User Content to the Service, you grant us a limited, royalty-free, non-exclusive right and license to use, reproduce and display your User Content only as necessary to produce a receipt for your customers.
You agree not to upload to the Service or otherwise post, transmit, distribute, or disseminate through the Service any material or marketing offer that (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory, (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability, (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy, (d) contains corrupted data or any other harmful, disruptive, or destructive files, (e) advertises products or Service competitive with our or our partners’ products and Service, as determined by us in our sole discretion or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Service, or which may expose us, our affiliates, or users to harm or liability of any nature.
Although we have no obligation to screen, edit, or monitor any User Content, we reserve the right, and has absolute discretion, to do so and to remove or disable any User Content at any time. You understand that by using the Service, you may be exposed to User Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any User Content, including any loss or damage to any of your User Content.
User Content also includes your customers’ email addresses, social media identifiers, and social posts which you may have access to as part of using the Service. You bear sole responsibility for appropriate use and handling of such information. You are responsible for complying with all applicable laws and regulations governing use of such information.
If your Flint Mobile Account is terminated, suspended, or put on hold for any reason or no reason, you agree (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers and (e) that we shall not be liable to you or any third party for termination of access to the Service or for deletion of your information or account data.
Your Right to Terminate
You may terminate this Agreement by closing your Flint Mobile Account at any time. Upon closure of a Flint Mobile Account, any pending transactions will be cancelled. Any funds that we are holding in custody for you at the time of closure, less any applicable Fees, will be paid out to you according to your payout schedule, assuming all payout-related authentication requirements have been fulfilled. If an investigation is pending at the time you close your Flint Mobile Account, we may hold your funds as described herein. If you are later determined to be entitled to some or all of the funds in dispute, we will release those funds to you.
Suspension or Termination by Us
We may terminate this Agreement and close your Flint Mobile Account for any reason or no reason at any time upon notice to you. We may also suspend the Service and access to your Flint Mobile Account (including the funds pending) if you (a) have violated the terms of this Agreement, any other agreement you have with us or our policies, (b) pose an unacceptable credit or fraud risk to us or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct.
Effect of Termination
We will not be liable to you for compensation, reimbursement, or damages in connection with any termination or suspension of the Service. Any termination of this Agreement does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us as provided in this Agreement.
Part III: TERMS FOR CONSUMERS
The Service allows you to pay invoices from Merchants using your credit or debit card. By using the Service, you give us permission to share your information with others as part of processing a payment through the Service. For example, we may provide a Merchant with your email address if you request a transaction receipt.
We are not responsible for the goods and services that you purchase using the Service. The Merchant, and not Flint, provides those goods and services and is responsible for customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a Merchant’s personnel, policies, or processes. The applicable Card Association and/or other entity issuing your Card, and not Flint, is responsible for customer service related to your Card.
Part IV: ADDITIONAL LEGAL TERMS
Representation and Warranties
You represent and warrant to us that, as applicable, (a) you are at least eighteen (18) years of age, (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement, (c) you are a legal United States resident, a United States citizen, or a business entity authorized to conduct business in one or more of the fifty states of the United States of America and the District of Columbia and will only process payments using the Service while in the United States, (d) the name identified by you when you registered is your name or business name under which you sell goods and services, (e) any sales transaction submitted by you will represent a bona fide sale by you, (f) any sales transactions submitted by you will accurately describe the goods and/or service sold and delivered to a purchaser, (g) you will fulfill all of your obligations to each customer for which you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser, (h) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations, (i) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity, (j) you will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Service and (k) your use of the Service will be in compliance with this Agreement.
You will indemnify, defend, and hold us and our partners (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement, including without limitation any violation of this Agreement, our policies or the Card Associations’ rules, (b) your wrongful or improper use of the Service, (c) any transaction submitted by you through the Service (including without limitation the accuracy of any product information that you provide or any claim or dispute arising out of products or services offered or sold by you), (d) any customer review, rating, comment, customer contact information, or testimonial which is published online through your use of the Flint Mobile Pay application and related web site, (e) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights, (f) your violation of any law, rule or regulation of the United States or any other country and (g) any other party’s access and/or use of the Service with your unique username, password or other appropriate security code.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FLINT, ITS PROCESSORS, ITS PROVIDERS, ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICE.
The Service is controlled and operated from facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations.
Limitation of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FLINT, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR FLINT MOBILE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLINT, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE AND/OR (G) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL FLINT, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Binding Individual Arbitration
You and Flint agree to arbitrate all disputes. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by an arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST US. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any dispute, we will pay all the arbitration fees. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Flint also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Service. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the County of San Mateo, California, or federal court for the Northern District of California and you waive any objection based on improper venue or forum non conveniens.
Limitation on Time to Initiate a Dispute
Unless otherwise required by law, an action or proceeding by you relating to any dispute must commence within one year after the cause of action accrues.
This Agreement and any Dispute will be governed by California law and/or applicable federal law without giving effect to any choice or conflict of law provision.
Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our website at flint.com or any other website maintained or owned by us for the purposes of providing Service in terms of this Agreement. Any use of the Service after our publication of any such changes shall constitute your acceptance of this Agreement as modified. However, any Dispute that arose before the modification shall be governed by the Agreement that was in place when the Dispute arose.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
Except as expressly provided in this Agreement, these terms are a complete statement of the agreement between you and us, and they describe the entire liability of us and our vendors and suppliers (including processors) and your exclusive remedy with respect to your access and use of the Service. In the event of a conflict between this Agreement and any other Flint agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement remains in effect in accordance with their terms upon the termination of this Agreement.