Flute Technologies Inc.
Flute Technologies has developed web-based and mobile services available through various websites (each a “Site”) and applications (each, an “Application”) operated and provided by and on behalf of Flute Technologies (such service, together with each Site and Application, together, the “Platform”). The Platform enables Users to, among other things, engage with restaurants and bars (“Partner Establishment”) to view (1) food and beverage specials via an Application, (2) open and close tabs via an Application, and (3) send credits to or receive credits from other individuals using the Application. The credits are referred to as “Flutes” within the Application and may be purchased by a user, gifted by a user within the Application, or offered to a user by Flute Technologies under certain promotional programs.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM OR CONTENT, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INLCUDED IN THIS AGREEMENT, FLUTE TECHNOLOGIESIS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM OR CONTENT AND YOU MUST NOT ACCESS OR USE THE PLATFORM OR CONTENT. IF YOU ACCESS OR USE THE PLATFORM OR CONTENT, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
This Agreement is entered into as of the earlier of the date, You first download or install an Application, access or use the Platform or Content, or indicate Your acceptance by clicking a box that states You accept this Agreement (the “Effective Date”) and will continue until terminated as set forth herein or updated by Flute Technologies by posting on this Site.
Flute Technologies reserves the right, at any time, to modify the Platform, Content or this Agreement, by making those modification available on the Platform or by providing notice to You by exclusively posting an update on this Site. Modifications will be effective immediately upon posting on this Site so check back for updates often. You may cease using the Platform at any time if You do not agree to any modification. However, You will be deemed to have agreed to such modification through Your continued use of the Platform following such post.
You will be required to establish an account on the Platform (either directly through the Flute Platform or via third party credentials e.g. Facebook) (an “Account”) to access an Application and certain portions of the Platform. Each Account and the user identification and password for each Account (the “Account ID”) is personal in nature. Each Account is for Your personal use and each Account ID may be used only by You alone. You may not distribute or transfer Your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the Platform or Content through Your Account. You will ensure the security and confidentiality of Your Account ID and will notify Flute Technologies immediately if any Account ID is lost, stolen or otherwise compromised.
You are fully responsible for all liabilities and damages incurred through the use of Your Account or under any Account ID (whether lawful or unlawful) and that any transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In connection with establishing an Account, You will be asked to submit certain information about Yourself (“Registration Information”). You agree that: (1) all Registration Information You provide will be true and complete; and (2) You will maintain and promptly update Your Registration Information to keep it accurate and current. Each individual may only be associated with one active Account at any given time. Each Account must have at a minimum one current and valid method of payment on file in order to open a tab at a Partner Establishment.
You can pay for services or goods through the use of Your Flutes or your preferred payment method identified within your Account. You understand that use of the Platform will result in charges to Your Account for the services or goods You receive (“Charges”) from the Partner Establishment within Your Application tab. When Flutes are available for use in your Flute wallet Flute Technologies will deduct Your payment for the applicable Charges for services or goods obtained through Your use of the Platform. If Flutes are not available for use, the Partner Establishment will charge the preferred method of payment established in Your Account for the goods or services. All Charges and payments will be enabled by the Platform using the preferred payment method designated in Your Account, after which You will receive a receipt by email. If Your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, You agree that Flute Technologies may use a secondary payment method in Your Account, if available. In the event Your secondary payment method is not accepted, Your tab will automatically close. Your tab will also automatically close approximately 5 minutes prior to the establishment closing for the evening or if You are physically 1 mile away from the venue. Charges paid by You by closing your tab voluntarily or by leaving a Partner Establishment without closing Your tab are final and non-refundable, unless otherwise determined by Flute Technologies. You are responsible for all Charges incurred under Your account, whether lawful or unlawful. Any Partner Establishment which allows You to use the Platform to settle or pay for a check, bill, tab or other payment, retains the right to settle Your payment should You fail to properly settle Your outstanding balance either as a result of Your failure to use the Platform to pay for Your balance, or as a result of the Platform failing to properly pay such owed payment. In addition, should You fail to properly settle Your outstanding balance a default tip or gratuity (specified by You in settings) will be included as part of Your payment to the Partner Establishment.
If for any reason Flute Technologies does not receive payment for a purchase, Flute Technologies may exercise its rights in law and equity, including (a) immediately suspending or terminating Your account; (b) seeking collection of the outstanding amount owed; and/or (c) seeking legal action against You for the breach of this Agreement. You are also responsible for paying any governmental taxes imposed in connection with use of the Platform and associated with Charges.
As between You and Flute Technologies, Flute Technologies reserves the right to remove and/or revise Charges for any or all services or goods obtained through the use of the Platform at any time in Flute Technologies’ s sole discretion. You understand and agree that, while You are free to provide additional payment as a gratuity to any Partner Establishment who provides You with services or goods obtained through the Platform, You are under no obligation to do so. Gratuities are voluntary unless you fail to property settle your tab prior to leaving the Partner Establishment.
Flute Technologies uses a third-party service provider for payment services (e.g. card acceptance, merchant settlement, and related services). By making use of some or all of these payment services on the Platform, You agree to be bound by the third-party terms and conditions Flute Technologies has no control over the terms and conditions and is not liable for such terms and conditions associated with said unrelated third-party.
4.3 Third Party Payment Services. Flute Technologies uses a third-party service provider for payment services (e.g. card acceptance, merchant settlement, and related services). By making use of some or all of these payment services on the Platform, You agree to be bound by the third-party terms and conditions which can be found here www.spreedly.com/terms-of-use Flute Technologies has no control over the terms and conditions and is not liable for such terms and conditions associated with said unrelated third-party. All card data collected is sent over a SSL connection. Flute does not store any sensitive card or payment data. All sensitive card and payment data is stored separately on the third-party provider PCI compliant server. Any non-sensitive data collected and stored by Flute is retained on an encrypted database server.
ALL CHARGES ARE NON-REFUNDABLE. FLUTE DOES NOT PROVIDE CREDIT OR REFUNDS RELATING TO ANY PURCHASE.
6.1 To the Platform.
6.2 To Applications.
Subject to Your compliance with this Agreement, Flute Technologies will permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform. You may install each Application only on a single computer or mobile electronic device or smart phone owned or controlled by You and used only for Your own personal purposes in accordance with this Agreement and any applicable documentation accompanying the Application or otherwise provided to You by Flute Technologies. Except as expressly set forth in the previous sentence, You are granted no licenses or other rights in or to any Application or any IPR (as defined below) therein or related thereto. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application. You are responsible for any costs associated with the data or download fees through Your individual mobile carrier.
6.3 To Marketers and Personally Identifiable Information.
The Platform may allow (a) You to make certain use of Your data and information (which may include Your personally identifiable information) available to marketers or advertisers (collectively, “Marketer”), (b) Marketers to solicit assignments from You, and (c) for Marketers and You to communicate regarding any such assignments or other matters (in each case, a “Communication”). By accepting or providing a Communication to or from a Marketer, You are agreeing to allow that Marketer to communicate directly with You through the Platform. You agree that You are solely responsible for all Communications between You and any Marketer through the Platform. Your election to share Your data and information (which may include Your personally identifiable information) to Marketers, or solicitation or acceptance of an assignment from a Marketer will serve as Your affirmative “opt in” to the disclosure by Flute Technologies of Your, data, and information (which may include Your personally identifiable information) to that Marketer.
6.4 Content and Intellectual Property Rights.
Unless otherwise noted on the Platform, all content, data or other information provided through the Platform (collectively “Content”) is owned by Flute Technologies, the Marketers, and Flute Technologies’ Partner Establishments, licensors or providers. Certain Content may include or be based on data, information or content from Marketers or Partner Establishments and other independent third-party Content providers (“Third Party Content”). Flute Technologies has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Third-Party Content provided through the Platform. Except as set forth in this Agreement, You are granted no licenses or rights in or to any Content, or any IPR (as defined below) therein or related thereto. If You would like to use the Content in a manner not permitted by this Agreement, please contact Flute Technologies email@example.com
Flute Technologies will respond to proper notifications of claimed copyright infringement with respect to material posted by You, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also reserve the right to remove and disable access to any user-posted material which, in our sole judgment, may be infringing or violating another’s intellectual property right, whether or not we have been notified by the rights holder, or as otherwise permitted by these Terms.
In accordance with the applicable law, Flute Technologies may, in our sole discretion, suspend and/or terminate the account of any registered user, or take measures to block access to a Site by any user, who infringes another’s intellectual property right, whether or not there is repeat infringement, or who violates the Code of Conduct. The designated agent for Flute Technologies to receive notifications of any claimed infringement relating to any Content is firstname.lastname@example.org.
You represent and warrant that none of the Content uploaded to the Platform infringes, misappropriates or otherwise violates any third party’s intellectual property rights. You further agree to indemnify Flute Technology from and against any and all claims which may arise from Your violation of this section five (5).
This Agreement may be terminated by either party at any time, in that party’s sole discretion. Upon termination or expiration of this Agreement for any reason: (1) all rights and subscriptions granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the Platform and all Content; (3) You will immediately delete any Applications downloaded or installed prior to termination; and (4) Flute Technologies may delete Your Account and any of Your assignments held by Flute Technologies at any time. Sections 1 (Definitions), 6 (Termination), 9 (Ownership), 10 (Warranties and Disclaimer), 11 (Indemnity), 12 (Limitation on Liability), 13 (Data Privacy), 15 (Governing Law and Venue) and 16 (Additional Terms) will survive any expiration or termination of this Agreement.
Without limiting Flute Technologies’ s right to terminate this Agreement, Flute Technologies may also suspend Your access to Your Account and the Platform or Content (including Your assignments), with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by Flute Technologies to be inappropriate or detrimental to the Platform, Flute Technologies, or any Marketer, Partner Establishment, Application user..
The Platform, and the databases, software, hardware and other technology used by or on behalf of Flute Technologies to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Flute Technologies. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.
Flute Technologies retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your right to access the Platform and Content under this Agreement. The Flute Technologies name, logo and all product and service names associated with the Platform and Content are trademarks of Flute Technologies and its licensors and providers and You are granted no right or license to You to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
Each party hereby represents and warrants that: (1) it has the legal right and authority to enter into this Agreement; (2) this Agreement forms a binding legal obligation on behalf of such party; and (3) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM, CONTENT AND TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FLUTE TECHNOLOGIES AND ITS PROVIERS EXPRESSLY DISCLAIM, AND YOU DISCLAIM ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FLUTE TECHNOLOGIES ITS EMPLOYEES, PROVIDERS OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
You hereby agree to indemnify, defend, and hold harmless Flute Technologies and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your access to or use of the Platform, Content or Technology, any assignments You provide to the Platform, and any breach by You of this Agreement. Flute Technologies will provide You with notice of any such claim or allegation, and Flute Technologies will have the right to participate in the defense of any such claim at its expense.
FLUTE TECHNOLOGIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT OR SERVICES, EVEN IF FLUTE TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF SUBMISSIONS, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. FLUTE TECHNOLOGIES TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $10. YOU AGREE THAT FLUTE TECHNOLOGIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FLUTE TECHNOLOGIES’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Flute Technologies respects Your copyrights and other intellectual property rights and those of other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Platform without Your authorization in a way that constitutes copyright infringement, You may notify Flute Technologies at legal@Flutedrinks.com.
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California, U.S.A. Each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the San Jose, CA, U.S.A. and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Flute Technologies.
Unless otherwise amended as provided herein, or as otherwise provided herein, this Agreement will exclusively govern Your access to and use of the Platform and Content, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform and Content.. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Flute Technologies. Any assignment in violation of the foregoing will be null and void. Flute Technologies may assign this Agreement to any party that assumes Flute Technologies’ s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
The Platform or Content may contain links to third-party sites that are not under the control of Flute Technologies. Flute Technologies is not responsible for any content on any linked site and You access any third-party site from the Platform or Content at Your own risk. Flute Technologies is not responsible for examining or evaluating the content or accuracy and it does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, technology, or services of third-parties. Flute Technologies is not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure You understand them before You engage in any transaction. Flute Technologies may reference You as a user of the Platform and use Your name and logo, as applicable, in listings of users of the Platform appearing on the Platform and for other marketing and promotional purposes relating to the Platform.
Any controversy or claim arising out of this Agreement or any alleged breach of this Agreement shall be resolved by means of binding arbitration before a single arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall be a practicing attorney or retired judge with at least fifteen years total working experience as such. The arbitration shall be held in Los Angeles, California or any other place agreed upon at the time by the parties. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. An award of damages shall include pre-award interest at the rate of six percent (6%) percent from the time of the act or acts giving rise to the award, in addition to arbitration fees and attorney fees. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Last Updated June 17, 2019