Flowspace, Inc. Site Services Terms and Conditions
Flowspace, Inc. ("Flowspace") offers an online platform connecting warehouses with storage space and storage services available with customers seeking to utilize such storage space and storage services (such platform, as it is provided by Flowspace, the "Flowspace Services"). These Terms and Conditions ("Agreement") govern your use of the Flowspace Services; if you do not agree to all terms and conditions herein, you may not use the Flowspace Services in any manner. The term "you" means the organization or entity entering into this Agreement; you may also be referred to as a "Warehouse" or "Customer," as applicable. "Warehouse" means a user of the Flowspace Services that creates a Warehouse account, and who may use such account create listings for available storage space at its facility(ies) and/or related storage services (including packing and movement of stored goods) (the "Storage Services," and such listing, a "Listing"). "Customer" means a user of the Flowspace Services that creates a Customer account and who may use such account to request Storage Services via the Flowspace Services.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Flowspace will use commercially reasonable efforts to provide you with access to the Flowspace Services. The Flowspace Services are subject to modification from time to time at Flowspace's sole discretion, for any purpose deemed appropriate by Flowspace. Flowspace will use reasonable efforts to give you prior written notice of any such modification that would materially affect you.
1.2 You must register for either a "Warehouse" or a "Customer" account on the Flowspace Services. The features of each account type will differ; for example, a Customer account is not capable of posting Listings. You will cooperate with Flowspace in establishing a password or other procedures for verifying that only your authorized employees have access to any administrative functions of the Flowspace Services. You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account with or without your knowledge or consent. You will cooperate with Flowspace in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Flowspace may reasonably request. You will designate an employee who will be responsible for all matters relating to this Agreement ("Primary Contact"). You may change the individual designated as Primary Contact at any time by providing written notice to Flowspace.
1.3 You may provide information and content to Flowspace in connection with this Agreement (including Warehouse Content (defined below))("Content"); you grant Flowspace a non-exclusive, perpetual, worldwide, royalty-free right and license to use and exploit the Content (including to modify the Content and make derivative works thereof), as necessary to exercise its rights and fulfill its obligations hereunder. You will keep all Content accurate and up-to-date, and inform Flowspace immediately of any change thereto.
1.4 Flowspace reserves the right to suspend your access to the Flowspace Services: (i) for scheduled or emergency maintenance, or (ii) in the event you are in breach of this Agreement, including failure to pay any amounts due to Flowspace.
1.5 Subject to the terms hereof, Flowspace will provide reasonable email support to you for the Flowspace Services from Monday through Friday during Flowspace's normal business hours. Flowspace does not guarantee it will be able to fix any problem you may be having.
1.6 You will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Flowspace Services or any software, documentation or data related to the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Flowspace Services; use the Flowspace Services for timesharing or service bureau purposes or for any purpose other than its own internal business use; or use the Flowspace Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations).
1.7 The materials displayed on the Flowspace Services (including Listings and Warehouse Content) are protected by intellectual property laws, and you may not use, copy, reproduce, modify, translate, publish, distribute, perform, upload, display, license or otherwise exploit any such materials for any purpose without the prior written consent of the owner thereof, or in a way that violates the rights of anyone else (including Flowspace).
1.8 If you provide any suggestions, ideas, enhancement requests, feedback, or recommendations related to the Flowspace Services ("Feedback"), you hereby assign such Feedback (including all intellectual property rights therein) to Flowspace.
2. LISTINGS AND STORAGE SERVICES
2.1 Warehouse will provide all information and content requested by Flowspace regarding the Storage Services that Warehouse wishes to be listed as a Listing (the "Warehouse Content"). Warehouse may use the features of the Flowspace Services to designate which Warehouse Content it authorizes for inclusion in a public Listing, and which Warehouse Content is only authorized to be transmitted to a Customer after Storage Services are booked. For example, Warehouse may choose to authorize the county and state of a Warehouse facility to be included in a listing, but only authorize the street address of such facility to be disclosed to a Customer who has booked the Storage Services that are available at such facility. If Warehouse does not designate any Warehouse Content as non-public via the Storage Services, Flowspace will assume all Warehouse Content may be disclosed in a public Listing.
2.2 Flowspace will decide, in its sole discretion, whether to include any Warehouse Content in a Listing, whether and where to place such Listing on the Flowspace Services, and in what manner to market or promote any Listing. Flowspace has no obligation to post any particular Listing and does not guarantee any Listing will result in a Customer requesting the Storage Services applicable thereto. Flowspace may list the price of Storage Services in its discretion, provided that Warehouse may provide Flowspace with a suggested price, and may set a minimum Flowspace Payment (defined below) owed by Flowspace to Warehouse for the applicable Storage Services. Warehouse's account on the Flowspace Services will reflect when a Listing has been posted.
2.3 If a Listing is posted to the Flowspace Services, Warehouse must at all times be capable of making such Storage Services available for the period of time and in the manner set forth in the Listing. For example, if Warehouse has provided Warehouse Content to Flowspace indicating it has 20,000 square feet of storage space available for three months in a particular facility for a particular price, it must keep such storage space available for such period, in such facility, and at such price. The foregoing does not restrict Warehouse from charging overage fees, using sliding scale pricing based on volume or duration, or making other similar pricing modifications (provided such modifications – and the circumstances in which they apply – are adequately described in the applicable Listing). If any Storage Service is booked via the Flowspace Services, Warehouse is obligated to provide such Storage Service in the manner described in the Listing.
2.4 Customer may use the Flowspace Services to search for available Storage Services it wishes to obtain, and may use the Flowspace Services to book any such Storage Services. Upon booking a Storage Service via the Flowspace Services, Customer's company name, Primary Contact name, contact information, and other identifying details (which may include any of the Content) will be provided to the applicable Warehouse, and vice versa.
2.5 Warehouse and Customer must enter into a separate agreement regarding the fulfillment of the Storage Services by Warehouse, which may not conflict with the terms of this Agreement (the "Warehouseman's Agreement"). Flowspace provides a sample Warehouseman's Agreement here for your use, but Flowspace is not a party to any Warehouseman's Agreement and is not responsible for any disputes between Warehouse and Customer regarding the availability or quality of the Storage Services or any other dispute between Warehouse and Customer whatsoever. Flowspace does not make any representation, warranty or covenant that the sample Warehouseman's Agreement is fit or complete for a particular purpose or in compliance with any law or regulation applicable to you, and Flowspace's provision thereof should not be construed as legal or other professional advice. You understand and agree the sample Warehouseman's Agreement is a draft containing different optional provisions and cannot be used without customization for your specific needs.
2.6 Flowspace does not make any representation, warranty or covenant regarding the accuracy of any Listing or Warehouse Content included therein. Flowspace is not a broker and not the merchant of record of the Storage Services; Flowspace is only a platform for the connection of Customers and Warehouses, and offers payment processing as a convenience for the users of the Flowspace Services.
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). For clarity, any pricing or payment terms are Flowspace's Proprietary Information.
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information (except, in the case of Flowspace, as necessary to exercise its rights and fulfill its obligations hereunder), (ii) not to use such Proprietary Information (except as necessary to exercise its rights or fulfill its obligations hereunder), (iii) to give access to such Proprietary Information solely to its employees or contractors with a need to have access thereto for purposes of this Agreement, and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
3.3 You may provide personally identifiable information to Flowspace in connection with the Flowspace Services. Such information is deemed Proprietary Information, except that Flowspace may disclose it as necessary for the purposes of this Agreement, including without limitation to connect Warehouses and Customers, as described in this Agreement. Flowspace may also use such information to communicate with you regarding the Flowspace Services or otherwise in connection with its business, products and services (including by sending you promotional offers on behalf of itself and its partners).
3.4 Notwithstanding anything to the contrary, Flowspace may collect (via cookies or otherwise), use, and freely exploit data with respect to the usage of the Flowspace Services and its performance, and any other information received by Flowspace in connection with this Agreement provided such information has been anonymized such that it does not identify you or any of your employees or contractors who use the Flowspace Services.
3.5 You acknowledge that Flowspace does not wish to receive any Proprietary Information from you that is not necessary for Flowspace to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Flowspace will assume that any information received from you that is not specifically requested by Flowspace is not confidential and not Proprietary Information.
4. FEES AND PAYMENT
4.1 Customer will pay the Flowspace the fees set forth in the applicable Listing, for the Storage Services booked via the Flowspace Services, on the payment schedule set forth therein (which may require certain Storage Services be paid for in advance of their provision). If Customer requests additional Storage Services (not included in the original booking) from Warehouse after the initial payment date and Warehouse agrees to provide such Storage Services, Warehouse will inform Flowspace immediately (including relevant suggested pricing information and the minimum Flowspace Payment) and Flowspace will charge Customer therefor in the next billing cycle.
4.2 If Customer does not pay any fees when due, Flowspace will inform Warehouse, and Warehouse may immediately cease Storage Services and/or pursue any other remedy available to it set forth in the applicable Warehouseman's Agreement and/or at law or equity (which may include, without limitation, placing a lien on, or destroying, the applicable goods being stored). Flowspace is under no obligation to pursue collections proceedings in connection with Customers' late payments, but may do so in its discretion, and Warehouse will cooperate in such proceedings at Flowspace's reasonable request.
4.3 Within thirty (30) days after the end of each calendar month during the term of this Agreement, Flowspace will calculate the Net Revenue (defined below) for such calendar month, and remit such amount to such Warehouse, less the Flowspace commission agreed between Warehouse and Flowspace via the Flowspace Services (and that may change from time to time upon agreement of Flowspace and Warehouse) (such payment amount, the "Flowspace Payment"). "Net Revenue" means amounts actually received by Flowspace from Customers of Warehouse's Storage Services during the applicable calendar month, less (a) sales taxes, use taxes, withholding taxes, VAT and any other taxes, duties or other government tariffs that a governmental authority requires Flowspace or Warehouse to pay with respect to the subject matter hereunder and/or that Warehouse has failed to pay itself in accordance with Section 4.6 (excluding taxes on Flowspace's net income); and (b) any transaction fees, disputes and refunds, granted in Flowspace's discretion. For clarity, regardless of any Warehouse's suggested price or required minimum for Flowspace Payment, Flowspace will not make any payment to Warehouse with respect to Storage Services unless and until it collects payment for such Storage Services from the applicable Customer.
4.4 If Warehouse does not perform any Storage Services, in compliance with the applicable Listing and/or other specifications provided by Warehouse, Flowspace has no obligation to provide Customer a refund, and Customer may pursue any remedy available to it under the applicable Warehouseman's Agreement and/or at law or equity. Notwithstanding the foregoing, Flowspace may grant Customer full or partial refunds in its sole discretion (and take such refunds into account in the calculation of Net Revenue, as described above).
4.5 Warehouse and Customer will not attempt to circumvent the payment mechanisms of the Flowspace Services (including, without limitation, by arranging for payment other than through the Flowspace Services).
4.6 Customer will pay all fees in accordance with the payment method selected via the Flowspace Services (the "Payment Method"). Customer will keep all Payment Method information accurate and up to date. Unpaid fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys' fees; finance charges will not be included in the calculation of Net Revenue. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. You agree to pay all such taxes (excluding taxes based on Flowspace's net income). In the case of any withholding requirements, you will pay any required withholding yourself and will not reduce the amount paid to Flowspace on account thereof. Any payment terms set forth in the Listing and otherwise in connection with use of the Flowspace Services are subject to and deemed part of this Agreement.
5. TERM AND TERMINATION
5.1 This Agreement shall commence upon your acceptance hereof and continue until terminated by either party upon ten (10) days prior written notice to the other party (or, in the case of your actual or suspected material breach of this Agreement, immediately upon notice to you by Flowspace).
5.2 If this Agreement terminates for any reason, (a) Flowspace will rescind your access to your account and, in the case of Warehouse, remove any Listings for your Storage Services, (b) if a Customer has already booked a Warehouse's Storage Services, Warehouse must continue to perform such Storage Services as set forth in the Listing therefor, and Customer must pay Flowspace for all such Storage Services, and the terms of this Agreement will continue to apply to such performance by Warehouse and Customer. You must refer to your Warehouseman's Agreement for the termination provisions thereof; this Agreement is separate from the Warehouseman's Agreement and the Warehouseman's Agreement may or may not be affected by the termination hereof. If a Warehouseman's Agreement terminates, you will promptly inform Flowspace; Flowspace is under no obligation to grant refunds for Storage Services paid for in advance, but may do so in its discretion.
5.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
You will indemnify and hold harmless Flowspace and its employees, contractors, directors, officers, and agents (and those of its affiliates) against any and all damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with (a) any breach or alleged breach of this Agreement, (b) any dispute between you and another user of the Flowspace Services (including, if you are a Warehouse, with a Customer, and vice versa), (c) any Warehouseman's Agreement, and (c) any other use by you of the Flowspace Services. Your indemnification obligations hereunder do not apply to the extent any losses arise as a result of Flowspace's gross negligence or willful misconduct.
7. YOUR WARRANTIES; FLOWSPACE DISCLAIMER
7.1 You represent, warrant and covenant that (a) all Content will be accurate and up-to-date; (b) you have all rights necessary to grant Flowspace the Content license granted hereunder, (c) you will at all times comply with applicable law, regulation, and industry standard in connection with the subject matter hereunder, and (d) you will comply with your obligations under the applicable Warehouseman's Agreement.
7.2 THE FLOWSPACE SERVICES, FLOWSPACE PROPRIETARY INFORMATION AND ANYTHING ELSE PROVIDED BY OR ON BEHALF OF FLOWSPACE IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. FLOWSPACE (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL FLOWSPACE (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE FLOWSPACE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE FLOWSPACE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FLOWSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF FLOWSPACE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (I) ONE THOUSAND DOLLARS, OR (II) IN THE CASE OF CUSTOMER, THE FEES PAID AND/OR PAYABLE TO FLOWSPACE HEREUNDER, OR IN THE CASE OF WAREHOUSE, THE FEES PAID AND/OR PAYABLE TO WAREHOUSE HEREUNDER, IN EACH CASE IN THE SIX MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FLOWSPACE WILL NOT BE LIABLE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH IT DOES NOT HAVE DIRECT CONTROL (INCLUDING WITHOUT LIMITATION THE STORAGE SERVICES).
9.1 You will at all times, at your own expense, procure and maintain insurance policies in amounts sufficient to cover your obligations under this Agreement and each applicable Warehouseman's Agreement.
9.2 Flowspace may modify the terms of this Agreement at any time upon prior written notice to you. If you do not agree to the terms as modified, your sole remedy shall be to terminate this Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.3 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you (by way of merger, change of control, or otherwise) except with Flowspace's prior written consent. Flowspace may transfer and assign any of its rights and obligations under this Agreement with written notice to you.
9.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Flowspace in any respect whatsoever.
9.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
9.6 This Agreement will be governed by the laws of the State of California, without regard to the conflict of laws provisions thereof. The federal and state courts sitting in Los Angeles County, California will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
9.7 Flowspace is permitted to disclose that you are one of its users to any third-party at its sole discretion, and to use your name, trademarks, and logos in connection with its publicity and marketing materials.