SUBFLOW INC. TERMS AND CONDITIONS

Please read these Terms of Use (this “Agreement”) fully and carefully before using the Site and Services. This Agreement sets forth the legally-binding terms and conditions for your use of the Site and Services. BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES REFERENCED HEREIN, EACH OF WHICH IS INCORPORATED HEREIN BY THIS REFERENCE AND EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME AS SET FORTH BELOW, TO THE EXCLUSION OF ALL OTHER TERMS. You may not use the Services if you do not unconditionally accept this Agreement. If you are accepting on behalf of an organization, you represent and warrant that you have the authority to do so; however, if your organization has entered into a separate contract with Subflow covering its use of the Services, then that contract shall govern instead.In this Agreement, “Customer” shall refer to you, unless you are accepting on behalf of a company in which case “Customer” shall mean that organization; and “Subflow Inc.” shall refer to Subflow, a Delaware corporation with a principal place of business at 324 Liberty Pike Suite 160, Franklin TN 37067

The parties agree as follows:

To access and use certain Services, Customer must create an account (“Account”) on the Site. Customer shall provide accurate, complete, and current Account information and, as applicable, timely update the same. Customer is solely responsible for the activity that occurs on its Account (which includes its sub-accounts), including via the Customer Application (as defined below), and for keeping its Account password secure. Subflow will not be liable for losses caused by any unauthorized use of the Account. Customer represents and warrants that it is duly authorized to do business and use the Services in all jurisdictions in which Customer operates. Customer must notify Subflow promptly of any change in Customer’s eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or any known unauthorized use of Customer’s Account. Upon termination of this Agreement, Customer may delete its Account by emailing mitch@getsubflow.com. Notwithstanding deletion of Customer’s Account, Subflow may retain Customer data as reasonably necessary for compliance with applicable law.

Customer acknowledges that through its use of the Services Customer consents to the collection and use (as set forth in the Privacy Policy) of information provided to Subflow by Customer, including the transfer of this information to the United States and/or other countries for storage, processing, and use by Subflow.

a. Paid Services. Customer agrees to pay for its use of the Services as set forth on the pricing page on the Site, as may be updated from time to time, except and only to the extent Customer has entered a separate written agreement or addendum with Subflow for special pricing on certain Services and/or country-specific pricing, or Subflow has otherwise conveyed special pricing in writing to Customer. Subflow reserves the right to change pricing from time to time. Customer’s continued use of the Services after a price change becomes effective constitutes Customer’s agreement to pay the changed amount.

b. Prepayment. Except as set forth in the next sub-section, Customer shall pay in advance for the Services in the currency specified by Subflow, without the right of set-off, deductions, or counterclaim. Some of the Services may accept recurring period charges as agreed to by Customer on the Site. By choosing such auto-reload payment plan, Customer acknowledges that such Services have a recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. SUBFLOW MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY SUBFLOW) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE SUBFLOW REASONABLY COULD ACT. CUSTOMER SHALL PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR ITS BILLING ACCOUNT. IF CUSTOMER HAS REQUESTED AUTO-RELOAD PAYMENTS, CUSTOMER SHALL PROMPTLY UPDATE ALL INFORMATION TO KEEP ITS BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER SHALL PROMPTLY NOTIFY SUBFLOW IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE IN THE ACCOUNT DASHBOARD. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT SUBFLOW MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER THE BILLING ACCOUNT UNLESS CUSTOMER HAS CANCELLED AUTO-RELOAD OR TERMINATED ITS PAID SERVICES AS SET FORTH ABOVE. 
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c. Payment Processing. Stripe provides payment processing services on behalf of Subflow and such services are subject to the Stripe Connected Account Agreement (available at https://stripe.com/us/connect- account/legal), which includes the Stripe Services Agreement (available at https://stripe.com/us/legal) (collectively, the “Stripe Terms “).

By creating a dashboard on the Site Customer agrees to be bound by the terms of use of Stripe, and authorizes Subflow to provide Customer’s billing information to Stripe. Customer shall provide Subflow with accurate billing information to enable Subflow to share it and easily collect payment through Stripe. Subflow may, in its sole discretion, change the payment processor available through the platform. If such change has been made, a written notice will be sent to Customer, using the contact information provided, informing Customer of such change. 

WHEN YOU PURCHASE A SUBSCRIPTION ON THE APPLICATION, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW EVERY MONTH. WE WILL AUTOMATICALLY RENEW YOUR SUBSCRIPTION BY USING THE PAYMENT METHOD ON FILE UNTIL YOU CANCEL YOUR SUBSCRIPTION. YOU MAY CANCEL THE AUTOMATIC RENEWALS OF YOUR SUBSCRIPTION VIA THE FOLLOWING MEANS: EMAIL - MITCH@SUBFLOW.COM; OR THROUGH THE APPLICATION. PLEASE NOTE THAT YOU WILL NO LONGER RECEIVE THE ITEMS OR SERVICES PROVIDED BY THE SUBSCRIPTION ON YOUR CANCELLATION EFFECTIVE DATE. THE CANCELLATION OF THE AUTOMATIC RENEWAL OF YOUR SUBSCRIPTION WILL BECOME EFFECTIVE IMMEDIATELY UPON YOU CONTACTING US.

Subject to Customer’s compliance with this Agreement, Subflow hereby grants Customer a limited, revocable, personal, non-exclusive, non-transferable, non-sublicensable license until this Agreement or Customer’s Account is terminated (the “Term”) to (i) access the documentation and APIs Subflow makes available to Customer to create an original application that interfaces with the Services (“Customer Application”), and (ii) make the Services available to Customer’s end users (“End Users”) through the Customer Application. The foregoing license shall extend to Customer Affiliates, provided that such Customer Affiliates are acting via Customer’s Account and provided further that Customer remains jointly and severally liable for all acts and omissions of its Affiliates. A “Customer Affiliate” means any entity that controls, is controlled by, or is under common control with Customer.

Customer shall not, and shall ensure that its End Users and Customer Affiliates do not, and shall not authorize, assist or enable any other third party to:

Customer acknowledges that all information, data, text, software, messages or other materials (“Customer Content”), whether publicly posted or privately transmitted or otherwise made available through the Service, are the sole responsibility of Customer. Subflow does not guarantee the accuracy, integrity or quality of such Customer Content. Under no circumstances will Subflow be liable in any way for any Customer Content, including, but not limited to, any errors or omissions in any Customer Content, or for any loss or damage of any kind incurred as a result of the use of any Customer Content made available via the Service.

Customer represents and warrants that all messages sent by it through the Services will be sent, and any subscriber list created by Customer, or on behalf of Customer, is collected, in compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing SMS messages, advertising, and telemarketing, including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227)(the “TCPA”), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the TCPA, all federal and state Do Not Call and calling-time restriction laws and regulations, and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices. Subflow may, in its sole discretion take any action it thinks appropriate in the case of non-compliance, including but not limited to suspension and/or cancellation of the account, without any liability to Customer, and Customer shall reasonably cooperate with any action by Subflow, including responding to requests for information regarding Customer policies and procedures related to the Services.

Customer acknowledges that, among other requirements, the TCPA requires prior express written consent from a consumer before Customer can send marketing text messages using an autodialer, with no purchase required as a condition of their consent, and such consent must be clear and conspicuous. Furthermore, Customer acknowledges that damages for each message sent in violation of the TCPA include fines of $500 and can include fines of $1500 per message if the violation is proven to be willful and knowing.

Customer shall include clear opt-out/unsubscribe information on messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to Customer’s messages. Customer shall promptly process all such do-not-text requests and maintain those numbers on Customer’s internal do-not-call/text list.

Customer shall schedule messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. Customer acknowledges it is solely responsible for obtaining any rights or licenses to any data for inclusion in any outbound messages. 

b. Suggestions. Customer’s suggested improvements to and feedback regarding the Services are not Confidential Information (as defined below), and Customer grants to Subflow an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.

c. Subflow Services and Subflow Content. Subflow owns and reserves all right, title and interest in and to the Services and all improvements, modifications and derivative works thereof. Other than the Customer Application and Application Content, all content made available through the Site or the Services (collectively, “Subflow Content”) are owned by Subflow.

d. Publicity. Except as explicitly granted herein, neither party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other party or its Affiliates without the express prior written authorization of the other party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed by Subflow in a writing signed by an authorized representative of Subflow’s Corporate Communications department. Subflow may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites.

e. Notices and Restrictions. The Services may contain Subflow Content specifically provided by Subflow, Subflow's partners, Subflow’s customers, or other third parties that is subject to and protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws under United States and other laws and international conventions. Customer shall abide by and maintain all copyright notices, information, and restrictions contained in any Subflow Content accessed through the Services.

f. DMCA notice and procedure for intellectual property infringement claims. All contents of this Application are ©2021 - 2024 Subflow Inc. or third parties. All rights reserved. Unless specified otherwise, this Application and all content and other materials on this Application including but not limited to all logos, designs, text, graphics, pictures, information, data, software, sound files and arrangement thereof (collectively, “Content”) are the proprietary property of Subflow Inc. and are either registered trademarks, trademarks or otherwise protected intellectual property of Subflow Inc. or third parties in the United States and/or other countries. 

If you are aware of a potential infringement of our intellectual property, please contact Mitch Lawson at mitch@subflow.com. 

We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Application infringes on the copyright, trademark or other intellectual property rights of any person or entity. If you believe in good faith that the Content infringes on your intellectual property rights, you or your agent may send us a written notice of such infringement titled “Infringement of Intellectual Property Rights - DMCA.” Your notice to us must include the following information: 
a. Customer’s Application and Application Content. As between Customer and Subflow, Customer owns and reserves all right, title and interest in Customer Applications originally created by Customer, excluding any Subflow Content integrated into the Customer Application), and any content originally transmitted by Customer or its End Users via the Customer Applications (“Application Content”). Customer represents and warrants that it has the necessary authority to grant Subflow access to the Application Content and hereby authorizes Subflow to use the Application Content to provide the Services and perform in accordance with this Agreement.

Please note that we will not process your complaint if it is not properly filled out or is incomplete. You may be held accountable for damages, including but not limited to costs and attorneys’ fees for any misrepresentation or bad faith claims regarding the infringement of your intellectual property rights by the Content on this Application. 

You may submit your claim to us by contacting us at: 

Subflow Inc. 
Mitch Lawson 
‍mitch@subflow.com 
324 Liberty Pike Suite 160, Franklin TN 37067 UNITED STATES

a. Confidential Information. “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving party, (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party, (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party’s rights, or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement (and for Subflow to provide the Services) and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder or for Subflow to provide the Services or make other disclosures identified in the Privacy Policy. Each party agrees to exercise due care in protecting the other party’s Confidential Information from unauthorized use and disclosure. Each party may also disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are bound to keep such information confidential consistent with the terms of this Section. In addition, Subflow may disclose this Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction. Either party may disclose the Confidential Information of the other as required by law, legal process or court order; provided that, subject to applicable law, it promptly notifies the other party of such required disclosure in order to allow the other party to seek a protective order or other appropriate remedy.

a. Customer Indemnification. Customer agrees to defend, indemnify and hold harmless Subflow, its Affiliates, suppliers, and partners, and each of their respective employees, contractors, directors, officers and representatives, from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties, and expenses (including reasonable attorney’s fees) (collectively, “Losses”) incurred in connection with claims made or brought by a third party arising from or relating to: (i) unauthorized or prohibited use of the Services, including violations of applicable law, by Customer, its Affiliates or its or their End Users, employees, agents or subcontractors; (ii) Application Content, (iii) claims by End Users to the extent they purport to extend Subflow’s liability or obligations beyond the limitations and disclaimers set forth in this Agreement, (iv) any breach of this Agreement, including Customer’s use of any of the Services in violation of any of the restrictions outlined in Section 4 above; or, (v) gross negligence or willful misconduct of Customer, its Affiliates or its or their employees, agents or subcontractors.

b. Procedure. Subflow shall notify Customer promptly after Subflow learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect the rights of Subflow to the extent that Customer is prejudiced. Subflow shall not admit any liability whatsoever. Customer shall be entitled to take sole control of the defense and investigation of the indemnifiable claim at its own expense, by providing prompt written notice to Subflow, subject to Subflow’s approval of Customer’s counsel, such approval not to be unreasonably withheld or delayed. Subflow shall cooperate in all reasonable respects with Customer and its attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its attorneys or otherwise, provided that such participation does not interfere with Customer’s defense. All settlements of indemnifiable claims under this Section shall: (i) be entered into only with Subflow’s consent if such settlement requires any admission of guilt or imposes any restriction on Subflow; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.

a. Representations. Subflow represents and warrants to Customer that it (i) has the corporate power and authority to enter into this Agreement and perform its obligations hereunder, and (ii) is authorized to do business and provide the Services. 

b. Assumption of Risk. Subflow has no special relationship with or fiduciary duty to Customer. Customer acknowledges and agrees that Subflow has no control over and has no duty to take any action regarding and shall have no liability for acts, faults or omissions of any third-party telecommunications systems, networks or operators (including, without limitation, suspension or termination of Subflow’s connections, or faults in or failures of their apparatus or network), in the jurisdictions in which it operates.

c. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SUBFLOW CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY (E.G., AS TO LATENCY AND THROUGHPUT), AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SUBFLOW, AND SUBFLOW’S SUPPLIERS, PARTNERS AND LICENSORS, AND EACH OF SUBFLOW’S AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES) THAT: (I) THE SERVICES (OR ANY MOBILE OPERATORS) WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED, (III) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (IV) THE CONTENT ON THE SITES OR SERVICES (OR ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE, ERROR-FREE, APPROPRIATE, COMPLIANT, OR COMPLETE, OR (V) THE RESULTS OF USING THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER’S USE OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK. SUBFLOW DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY, A THIRD PARTY THROUGH THE SERVICES, AND SUBFLOW WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND THIRD PARTIES.

d. Reservation of Rights. Subflow reserves the right, but is not obligated, to monitor and audit Customer’s use of the Services for any reason or no reason, without notice, to ensure Customer’s compliance with this Agreement. Subflow reserves the right, but is not obligated, to reject, refuse to transmit or post, block, or remove any posting (including Application Content), or to restrict, suspend or terminate Customer’s access to all or any part of the Services at any time if Customer has, in Subflow’s reasonable judgment, violated this Agreement or to prevent harm to Subflow’s business or reputation. Subflow may, but is not obligated to access, read, preserve, and disclose any information that Subflow reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental or agency request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Subflow, its customers, its customers’ end users, and/or the public. Customer agrees to provide Subflow with any information Subflow reasonably requests to investigate and resolve problems relating to Customer’s Account.

e. No Emergency Services. Subflow’s Services are not intended for and may not be used (i) in connection with 911, E911, or other emergency, public safety or similar services (“Emergency Services”), or (ii) as a replacement for any primary phone services (e.g., landline or mobile phones) used to contact Emergency Services. Customer acknowledges that Subflow and Subflow’s suppliers have no responsibility to connect any 911 calls to any Public Safety Answering Point.

‍g. Deletion of Customer Data. Except as agreed by Subflow and Customer in writing, Subflow may periodically delete Customer’s data including any Application Content. Further, data storage is not guaranteed by Subflow and Subflow shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Customer may incur relating to the loss or deletion of Customer’s data.

a. Termination for Convenience. Customer may terminate its use of the Services any time for any reason, and may close its Account by following the instructions on the Site or by contacting Subflow at mitch@getsubflow.com. Subflow may terminate this Agreement by providing 60 days’ advance notice to Customer. Customer shall not be entitled to return of any fees paid to Subflow in the event Customer has subscribed to paid Services and elects to terminate those Services.

b. Suspension of Services; Termination for Cause. Subflow may suspend Customer’s right to use the Services or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the Services), for cause immediately (i) if Customer is in breach of this Agreement, (ii) if Customer has violated or Subflow has reason to believe Customer has violated or has encouraged others to violate any provision of this Agreement or any acceptable use policy disseminated by Subflow, (iii) upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets, failure to continue Customer’s business in the ordinary course, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding, or (iv) if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to Subflow is invalid or charges are refused for such payment mechanism.

c. Effect of Suspension. Upon Subflow’s suspension of Customer’s use of or access to any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by Customer, notwithstanding the suspension, (ii) Customer remains liable for all fees, charges and any other obligations Customer has (or Customer’s Account has) incurred through the date of suspension with respect to the Services, and (iii) all of Customer’s rights with respect to the Services will be terminated during the period of the suspension.

d. Effect of Termination and Survival. Upon termination of this Agreement, for any reason: (i) Customer remains liable for all fees, charges and any other obligations accrued and owed by Customer through the effective date of such termination, (ii) except as expressly set forth herein, all of Customer’s rights and licenses under this Agreement will immediately terminate and Customer shall cease using the Services, and (iii) any balance on Customer’s account remaining after termination of this Agreement will be repaid to Customer within twenty (20) business days following termination. All amounts accrued or owed to Subflow in connection with this Agreement shall survive any termination of this Agreement. Following any suspension or termination of this Agreement or Customer’s Account other than for cause, Customer may request any post-termination assistance that Subflow may elect to make generally available with respect to the Services such as data retrieval arrangements, subject to and conditioned upon Customer’s advance payment of fees and acceptance of all terms and conditions that Subflow specifies in writing with respect thereto.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SUBFLOW OR SUBFLOW’S PARTNERS, SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (II) ANY LIABILITY THAT EXCEEDS THE AMOUNT OF FEES ACTUALLY PAID TO SUBFLOW IN THE SIX MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (III) USE OF OR INABILITY TO USE THE SERVICES IN CONNECTION WITH EMERGENCY SERVICES.

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to its principles of conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable hereto. Without limiting the preceding language, Customer agrees to submit, for purposes of this Agreement, to the jurisdiction and venue of the state and federal courts located in the State of Delaware. CUSTOMER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SERVICES OR SUBFLOW MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

a. Management Resolution. In the event either party has a dispute or claim against the other party (except with respect to billing disputes), the disputing party shall provide written notice to the other party. The parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within 30 calendar days of the receipt of notice. Neither party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.

b. Binding Arbitration. If negotiations fail to resolve the dispute within 30 calendar days, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims relating to intellectual property rights, indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent Subflow or Customer from terminating Services in accordance with the Agreement.

c. Location and Procedure. A party who intends to seek arbitration must first send to the other party a written notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. The location of arbitration will be in Williamson County, Tennessee, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, and this dispute resolution provision will be governed by the Federal Arbitration Act and not by any state or national law concerning arbitration. The amount of any settlement offer made by Customer or Subflow shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Subflow is entitled. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.

d. Jury Trial and Class Action Waiver. Each party waives its right to a trial by jury for claims subject to arbitration hereunder. The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER MAY BRING CLAIMS AGAINST SUBFLOW ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. The arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding.

e. Equitable Relief. Notwithstanding the foregoing, each party shall be entitled to enforce its intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.

a. Entire Agreement; Headings. This Agreement constitutes the entire agreement between Customer and Subflow with respect to the Site and Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Subflow with respect thereto. The section and paragraph headings in this Agreement are for convenience of reference only and shall not affect their interpretation. No oral or written information or advice given by Subflow or its employees and other representatives will create any obligations or warranty on behalf of Subflow unless otherwise agreed in a writing signed by an authorized Subflow representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Customer, even if signed by the parties after the date hereof, shall have no force or effect. In the event that the parties have executed versions of this Agreement drafted in more than one language, the English language version shall govern and prevail.

b. Modifications/Waivers. Except as expressly provided elsewhere in this Agreement, this Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent or confirmation on Subflow’s behalf may only be given by an authorized signatory of Subflow. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Subflow may modify the is Agreement in its sole discretion, by notifying Customer of such modification. Customer acknowledges that continuing to use the Services or Site after such notice, Customer has agreed to such modification.

c. Severability. If any provision of this Agreement, or any part of such provision, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that this Agreement will otherwise remain in full force and effect and enforceable.

d. Force Majeure. Neither party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, strikes and similar labor difficulties, war, sabotage, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation. Either party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permit Customer to terminate any Services except as expressly provided herein.

e. Notices. Customer hereby authorizes Subflow to send notices to Customer relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address Customer provides to Subflow in Customer’s Account, in addition to the other means and methods set forth in this Agreement. It is Customer’s responsibility to keep Customer’s email address current, and Customer will be deemed to have received any email sent to the last known email address Subflow has on record for Customer. Notices that Subflow sends to Customer via email will be deemed effective upon Subflow’s sending of the email. Notices provided to Subflow under this Agreement shall be sent to the attention of Customer’s account manager, with a copy sent to the following address with respect to any legal matters, at:
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Subflow.
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324 Liberty Pike Suite 160, Franklin TN 37067
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‍mitch@getsubflow.com