Terms And Conditions | FlavorCloud

FlavorCloud provides its customers with cross border commerce as a service to easily allow eCommerce brands to go global. These Terms of Use (the “Terms”) are a binding contract between you and FlavorCloud Inc. (“FlavorCloud,” “we” or “us”) that govern your access to and use of the FlavorCloud website, application, software, APIs, and products (the “Services”). You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your use of the Services in any way, or your clicking or checking a box marked “I Agree” (or something similar), means that you have read, understood, and agree to these Terms, and these Terms will remain in effect while you use the Services. You also understand and acknowledge that your personal information will be collected, used, and otherwise processed in accordance with our Privacy Policy.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by either placing a notice on the FlavorCloud app or website, by sending you an email, or by some other means.

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

What about my privacy?

FlavorCloud takes the privacy of its users very seriously. Please visit the following link for the current Privacy Policy.

What are the basics of using FlavorCloud Services?

FlavorCloud’s Services allow you to offer international shipping and returns services for cross border ecommerce purchases on your website. FlavorCloud serves as an intermediary between you and the carrier service you select to transport your shipments (such service provider, the “Carrier”). FlavorCloud does not physically transport or deliver shipments.

You will provide true, accurate, current, and complete information about yourself and/or your organization as applicable when providing your account details, not open up more than one account at the same time, and not open up an account under a different name than you have in the past.

If you access or use our Services on behalf of an organization or entity, such as your employer, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms and these Terms are an agreement between us and you and us and that organization or entity (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to both to you and to that organization or entity). If you sign up for our Services using an email address associated with or provisioned by an organization, or if an organization pays fees due in connection with your access to or use of our Services (or reimburses you for payment of such fees), or otherwise, then, we may deem you to be accessing and using our Services on behalf of that organization in our sole discretion.

You will only use the Services in compliance with these Terms, and only in a manner that complies with all laws that apply to you. You will ensure that the information you supply to us in purchasing Carrier services is complete and accurate. If your use of the Services is prohibited by applicable laws, then you are not authorized to use the Services. We cannot and will not be responsible for your using the Services in a way that breaks the law.

How do you sign up for the Services

Your account on the Services gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

You will maintain the security of any password and/or API key that is provided to you and not reveal it to anyone else. You will be responsible for all activities that occur on your account and notify us immediately of any unauthorized use or other security breach of which you become aware.

By providing FlavorCloud your email address you consent to our using the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting our support team at support@flavorcloud.com, or by clicking the unsubscribe link within each marketing or advertising message. Opting out will not prevent you from receiving Services-related notices. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

 Your use of the Services is subject to the following additional restrictions:

You represent, warrant, and agree that you will not, or assist, permit or enable any third party to, use the Services or any Carrier’s services, including without limitation by contributing any Content or Your Content (each of those terms is defined below), or interacting with the Services, in a manner that:

(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including FlavorCloud or any of its service providers and Carriers);

(b) Constitutes a breach of, or otherwise conflicts with, any Carrier terms, rules, or policies, or your agreements with any Carriers;

(c) Violates any law or regulation, including any applicable export control laws;

(d) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

(e) Jeopardizes the security of your FlavorCloud account or anyone else’s account (such as allowing someone else to log in to the Services as you);

(f) Attempts, in any manner, to obtain the password, account, or other security information from any other customer;

(g) Violates the security of any computer network, or cracks any passwords or security encryption codes;

(h) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);

(i) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);

(j) Copies or stores any significant portion of the Content;

(k) Decompiles, reverse engineers, disassembles, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services;

(l) Transmits any virus, worm, defect, trojan horse, malware, or other software agents through our Services;

(m) Could damage, disable, overburden, impair or otherwise interfere with FlavorCloud’s provision of the Services;

(n) Could lead to death, personal injury, or environmental damage, including for any activities where the use or failure of the Services could lead to death, personal injury, or environmental damage; or

(o) Forges, misrepresents, omits, or deletes message headers, return mailing information, and/or Internet protocol addresses to conceal or misidentify the origin of a message.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

What are FlavorCloud’s rights in its Content?

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, user submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (a) without the prior consent of the owner of that Content or (b) in a way that violates someone else’s (including FlavorCloud’s) rights.

To the extent you receive any downloadable software, agents, SDKs, APIS or other code from us in connection with our Services (“Downloadable Software”), subject to your compliance with these Terms, we grant to you a non-exclusive, non-transferable, non-sublicensable right and license to use our Downloadable Software solely as reasonably necessary for your use of our Services in accordance with these Terms. For clarity, except for the Downloadable Software, our software products are provided on a remote, software-as-a-service basis only.

You understand that FlavorCloud owns the Services and all materials and content displayed or made available on the Services, other than Your Content (defined below), and all software, algorithms, code, technology and intellectual property underlying and included in or with our Services, including our Downloadable Software, and all intellectual property rights therein and thereto throughout the world, are our (or our licensors’ as applicable) sole and exclusive property. Except as explicitly provided herein, nothing in these Terms will be deemed to create a license in or under any intellectual property rights. You won’t, and you will not assist, permit or enable any third party to, copy, rent, lease, loan, sublicense, resell, distribute, modify, publish, publicly display, publicly perform, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.

The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, it doesn’t mean that all the restrictions above don’t apply – they do!

Do I have to grant any licenses to FlavorCloud or to other users?

Anything you post, upload, share, store, or otherwise provide through or to the Services is “Your Content.”

By submitting, posting, displaying, providing, or otherwise making available any of Your Content on or through the Services, you expressly grant, and you represent and warrant that you have all rights necessary to grant, FlavorCloud a license to use, translate, modify (for technical purposes, for example making sure Your Content is viewable on mobile devices, tablets as well as a computer), reproduce, edit, share with third parties (such as Carriers), make derivative works of, and otherwise act with respect to such Your Content, in each case to enable us (a) to provide and operate the Services, (b) solely in de-identified form, to improve our products and services and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends (and we will own such de-identified data); and (c) to perform such other actions as described in our Privacy Policy or as authorized by you in connection with your use of our Services. You agree that the license you grant is royalty-free, perpetual, irrevocable, sublicensable, transferable, and worldwide. This is a license only – your ownership in Your Content is not affected.

Finally, you understand and agree that FlavorCloud, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to Your Content to conform and adapt Your Content to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

You are responsible for all of Your Content that you contribute or provide, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.

Will FlavorCloud ever change the Services?

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue all or any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services without liability. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason, in our sole discretion, and without notice.

Our Publicity Rights

We may identify you as a user of our Services in our promotional materials. We will promptly stop doing so upon receipt of your request sent to support@flavorcloud.com.

How do you pay for FlavorCloud’s Services?

You agree to pay all fees associated with the Services. FlavorCloud’s pricing is determined when you choose services and may be updated from time to time. You may be subject to alternate pricing as set forth on a separate services agreement or in some other written form executed by FlavorCloud. FlavorCloud reserves the right to revise your pricing at any time by providing written notice to you. FlavorCloud will invoice You on a per shipment-basis and provide you online access to the invoice(s) detailing your orders and the applicable charges. You authorize FlavorCloud or our third-party payment processors to charge the full invoice amount for each order to the payment method you provide in your account information once the order has been shipped. We accept various payment methods through our third-party payment processors. If we are unable to charge the payment method you provide, you agree to pay all amounts due on your outstanding invoice(s) upon demand. Payment obligations are non-cancelable once incurred, and fees paid are non-refundable. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activities in connection with the Services (other than taxes based on FlavorCloud’s income), provided that FlavorCloud may, in its sole discretion, do any of the foregoing on your behalf or for itself in connection with the Services as it sees fit.

You must provide current, complete, and accurate payment and billing information for your account. You must properly update all information to keep your account current, complete, and accurate (for example you must notify us of a change in billing address, credit card number, or credit card expiration date, PayPal account email or bank account number). Changes to such information may be made in the FlavorCloud app. Failure to keep such payment method details current and accurate may result in FlavorCloud’s failure to collect duties, freight charges and transaction fees, and may result in the suspension or termination of your access to the Services.

It is your obligation to review all billing invoices for accuracy. You have 30 days from the date of an invoice to notify FlavorCloud, in writing, that you dispute the charges. Failure to do so in the specified time will constitute your agreement that all charges are valid, and you waive any claims you may have had regarding such changes.

Relationship with Carriers; bundled transportation services
As a Customer of FlavorCloud, you hereby acknowledge and agrees that all shipping transportation and related services provided through or as part of FlavorCloud’s services are part of a bundled service provided by FlavorCloud, and FlavorCloud is the contracting party with Shipping Carriers for all shipping transportation services.  As a result, as a customer you acknowledge and agree that (i) its sole and exclusive remedies for any losses incurred in connection with shipping services facilitated or provided through FlavorCloud’s service offerings are provided exclusively by FlavorCloud; (ii)  the FlavorCloud appointed Carrier processes personal information consistent with their  privacy notice, which can be found at each carrier’s webpage and (iii) shipping carriers, to the fullest extent permitted under applicable law, shall have no liability to any FlavorCloud customer arising out of any shipments facilitated and transported by FlavorCloud.  Carriers have no obligation to process or pay any claims submitted to it directly by FlavorCloud Customers for shipment losses or damage.

How do FlavorCloud’s Services work?

FlavorCloud provides estimated duties and taxes for DDU (delivery duties unpaid) and, subject to these Terms, guaranteed DDP (delivery duties paid) services. Our Services may also include FlavorCloud’s utilization of third-party Carriers for distribution and fulfillment services.

When you choose to ship DDP, subject to the terms set forth herein, FlavorCloud will be responsible for paying the actual duty and taxes to the relevant customs and duty authorities when importing your commodities into the country of destination. When you choose to ship DDU, the ultimate recipient (“Consignee”) is responsible for paying the duty, taxes, and other landed cost fees for each shipment and the Consignee will be responsible for all associated financial and legal responsibilities.

FlavorCloud will facilitate the placing of your shipment with the Carrier through the FlavorCloud website or via API. Your shipment is subject to the terms and conditions of FlavorCloud’s pre-existing account with the Carrier. In no event will FlavorCloud be responsible for any disputes, claims, or complaints relating to the Carrier’s services for the shipment of your commodities including but not limited to loss, damage, or delays.

For any loss or damage to your shipments during transit by a Carrier to a Consignee, FlavorCloud will manage the claim with the Carrier and collect coverage amounts from the Carrier (if any). FlavorCloud will not be liable or responsible for any loss or damage caused to shipments during transit, which shall be the responsibility of the Carrier. If available, you will have the option to select insurance coverage at the customer account and order or shipment level. If available, insurance coverage will be provided by the applicable Carrier or from a third-party insurance provider for shipments with a total order value less than $10,000 USD (any such third-party insured shipment, a “Third-Party Insured Shipment”). The amount of the fee for a Carrier-insured Shipment will be determined by the Carrier based on the shipment-level details and the applicable Carrier’s terms. FlavorCloud will pass through insurance proceeds for loss or damage to Carrier-insured shipments from the applicable Carrier to you. The amount of the fee for the Third-Party Insured Shipment will be determined by the third-party insurance provider based on the shipment-level details and such third party’s terms. Third-Party Insured Shipments are subject to the following terms, as may be updated from time to time, and by selecting insurance coverage at the customer account level you hereby agree to such terms: https://www.shipsurance.com/flavorcloud/terms.

You will be prompted to create a merchant profile before using the Services. FlavorCloud will then ask you for information relevant to the commodities that you would like to ship (“Commodity Information”) and FlavorCloud will use its online classification tools to classify the commodities (“Commodity Classification”) based on the Commodity Information. You are obligated to provide FlavorCloud with complete and accurate Commodity Information. Using the Commodity Classification and the Commodity Information, FlavorCloud will calculate the estimated the landed costs comprising duties, taxes and customs fees. You are obligated to provide FlavorCloud with complete and accurate Commodity Information. Based on the Commodity Classification, the Commodity Information, including the address to which you would like the Carrier to ship your commodities, FlavorCloud will gather shipment options and rates from the Carrier and display them to you.

Before FlavorCloud places your shipment order with the Carrier, FlavorCloud will display the landed costs comprising duties, taxes and customs fees based on the Commodity Classification and provide the fee that FlavorCloud will charge you for the DDP or DDU shipment. FlavorCloud will route your shipment with the Carrier (transmitting applicable data regarding that shipment) and invoice you the transportation (freight) charges and the FlavorCloud transaction fees, and, if using DDP, the duties and taxes, for that shipment. Your payment is due upon your receipt of the invoice. After you have paid FlavorCloud for the duties and taxes for DDP, the transportation charges, and the transaction fees, FlavorCloud will pay the Carrier and, for DDP shipments, the customs organizations for all fees associated with the cost of the shipment including duties and taxes (for DDP) and transportation fees. You will be able to generate shipping documents and labels through the FlavorCloud app or the FlavorCloud API.

FlavorCloud shall not be responsible for any local customs charges, import taxes or duties or any similar charge(s) incurred through the carriage and/or delivery of any DDU shipment or any Undeliverable Shipment (defined below). You must satisfy yourself as to whether any of these charges will become due, and if so in what amounts, before completing an order with FlavorCloud. If any such charges become due as a result of a carriage and/or delivery of a shipment on your behalf and are charged to FlavorCloud by any competent authority, you agree to reimburse FlavorCloud fully for any such charges within 7 days of FlavorCloud’s request.

Global DDP Delivery Promise

FlavorCloud will invoice you, and you will pay FlavorCloud, the duties and taxes for DDP shipments estimated by FlavorCloud at the time each shipment transaction is initiated. After receiving your payment, FlavorCloud will pay the Carrier for the duties and taxes for DDP shipments even if they are different from the estimated duties and taxes, subject to the following conditions (“Conditions”):

(a) You have not misrepresented shipping data or misclassified the commodities in your shipment or otherwise failed to provide sufficient and accurate Commodity Information affecting the estimated duties and taxes, which FlavorCloud shall determine in its sole discretion.

(b) Additional costs have not been incurred because of your failure to get any licenses, permits, or other documents necessary to effect your shipment.

In the event FlavorCloud determines in its sole discretion that any of the Conditions have not been met, you will be responsible for paying the amount of the duties, taxes, and additional charges in excess of the estimated duties and taxes. FlavorCloud may also, in its sole discretion, pass on to you any other costs that FlavorCloud may incur in connection with your failure to meet the Conditions. Additionally, if you provide FlavorCloud with inaccurate shipping details, such as chargeable weight, or any other variable that influences the transportation cost, then FlavorCloud reserves the right to charge you for the incremental difference in actual cost after we settle with the Carrier.

What do I need to know about interacting with Carriers and other third parties through FlavorCloud’s Services?

The Services may contain links or connections to Carriers, 3PL (3rd Party Logistics) or other third-party websites or services that are not owned or controlled by FlavorCloud. Our display on or through the Services of delivery service options offered by third parties does not in any way imply, suggest, or constitute any sponsorship or approval of us by any such Carrier or any affiliation between any such Carrier and FlavorCloud. Our display of specific options does not suggest a recommendation by us of the Carrier or its delivery options. You agree that we are in no way responsible for the accuracy, timeliness, or completeness of information you may obtain from these Carriers. Your interaction with any Carrier or other third party found on or through our Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, is solely at your own risk. You agree that FlavorCloud will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches, or negligence of any Carrier or other third party or for any personal injuries, death, property damage, or other damages or expenses resulting in any manner from your interactions with any Carrier.

You agree to abide by the terms or conditions of purchase imposed by any Carrier with whom you elect to deal. The circumvention of a Carrier’s rules is prohibited. Your failure to comply with the Carrier’s terms and conditions may result in the termination of your account on the Services, the Carrier taking actions including the cancellation of a service order, denied delivery, additional charges to your credit card or payment instrument, additional charges collected at the delivery or collection, or future invoicing.

When you access third party websites or use third party services, you accept that there are risks in doing so, and that FlavorCloud is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. FlavorCloud has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, FlavorCloud will not and cannot monitor, verify, censor, or edit the content of any third-party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

If there is a dispute between you and Carriers or any other third party, you agree that FlavorCloud is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release FlavorCloud, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.

If a Carrier deems an order undeliverable, including, but not limited to, due to an incorrect/insufficient delivery address or the Consignee not willing to pay duties/taxes at delivery, (each, an “Undeliverable Shipment”) the Carrier may abandon and/or destroy the shipment without prior approval from you or FlavorCloud. In such instances, the Carrier and/or FlavorCloud may decide, at the Carrier’s and FlavorCloud’s sole discretion, to not return the Undeliverable Shipment to the origin address and there will be no refund of any fees and cost associated with the order by the Carrier and FlavorCloud, including that neither the Carrier nor FlavorCloud will compensate you for the merchandise that is part of an Undeliverable Shipment.

What terms govern my use of FlavorCloud’s APIs?

You agree to use the FlavorCloud APIs solely as reasonably necessary for your access to the Services and in compliance with the Terms and all applicable laws.

We may monitor your use of any APIs to improve the quality of the Services, and to verify your compliance with the Terms. This monitoring may include accessing and using your API client to, among other things, identify security issues that could affect FlavorCloud, our customers, or our licensors. You will not interfere with this monitoring. We may use any technical means to overcome such interference. Your access to the content provided through any API may be restricted, limited, or filtered in accordance with applicable laws.

You will not attempt to exceed or circumvent limitations on access, calls and use of the FlavorCloud APIs, or otherwise use any APIs in a manner that exceeds reasonable request volumes, constitutes excessive or abusive usage, or fails to comply, or is inconsistent with, any part of this Section or these Terms.

You will use commercially reasonable efforts to protect all information collected from users through the FlavorCloud’s APIs from unauthorized access, use, or disclosure. All personal data collected from users through FlavorCloud’s APIs should be stored and served using strong encryption.

The network, operating system, and software of your web servers, databases, and computer systems, as well as FlavorCloud’s APIs, must be properly configured to securely operate your application and store data. You must not architect or select your systems in a manner to avoid your security obligations.

If we provide you a security key, token, or other similar mechanism to access the API (“API Key”), you will use the API Key as your sole means of accessing the API and you may not share the API Key with any third party. You will be responsible for any and all actions taken using the API Key. In the event of a security breach involving unauthorized access, use, disclosure, or destruction of user’s personal data, you will immediately disconnect any intrusions or intruder and promptly notify us of the breach. You will work with us to promptly remedy any security breach, and in the event any security breach involves FlavorCloud’s API or customer data, you will make no public statement regarding such breach without our prior written consent, unless such public statement is required by law.

You will not, and will not allow others acting on your behalf or any third parties to:

(a) Share the APIs with any third party or help create any product or service, including an API client, that functions substantially the same as, is similar to, or competitive with the APIs and offer it for use by any third party;

(b) Interfere with or disrupt the APIs or the servers or networks providing the APIs;

(c) Reverse engineer or attempt to extract the source code from any API or any related software, except to the extent that this restriction is expressly prohibited by applicable law;

(d) Use the API to obtain or transmit personal data from users, or expose such personal data to us or any third party, without explicit opt-in consent from users; or

(e) Otherwise access or use the Services or the API for any purpose other than as expressly set forth in this Agreement.

What if I want to stop using FlavorCloud?

You’re free to stop using FlavorCloud at any time, by contacting us at support@flavorcloud.com; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

FlavorCloud may permanently or temporarily terminate (or suspend access to) your use of the Services or your account, for any reason in our sole discretion, including your breach of these Terms, if your use of the Services raises suspicion of fraud, misuse, security concern, or if you make material misrepresentations regarding the Commodity Information. Upon deactivation of your account for any reason, you shall immediately pay to us all of your outstanding unpaid invoices. FlavorCloud has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to deactivate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important data in Your Content that you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of FlavorCloud. Upon termination of your account for any reason or no reason, you continue to be bound by these Terms.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.

What else do I need to know?

Warranty Disclaimer. Neither FlavorCloud nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for (a) the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services, (b) any failure or delay in purchasing labels or delivering shipments (including, without limitation, any failure or delay arising from the use of or inability to use any part of the Services), or (c) the performance or non-performance by a Carrier or any other provider of labels or delivery services arranged through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from FlavorCloud or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product or service). THE SERVICES AND CONTENT ARE PROVIDED BY FLAVORCLOUD (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL FLAVORCLOUD (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY ACTS, OMISSIONS, OR FAILURES OF A CARRIER, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AGGREGATE AMOUNT EXCEEDING (X) ANY AMOUNT PAID BY YOU TO FLAVORCLOUD IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM OR (Y) $100.00, WHICHEVER IS GREATER.

Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold FlavorCloud, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms, (c) any inaccurate or incomplete Commodity Information, or other inaccuracies in Your Content, such as the value, commodities, origin, or destination of products being shipped and initiated by you via the Services, and (d) your violation of a Carrier’s rules, policies, terms of service, or any agreement between you and a Carrier. In the event of such a claim, suit, or action (each, a “Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Export Controls; Laws. You understand and acknowledge that any goods or services sold by you, including any goods shipped via our Services (and any software, parts, or components contained therein, along with any related manuals, materials, information or data, including but not limited to any parts, support or services provided by you) (collectively, “Your Products and Services”), as well as our Services and performance by you and us under these Terms, are subject to the laws, rules, regulations, directives, ordinances, orders, and statutes of the United States and may be subject to the laws, and regulations of other countries in which transactions may occur. You agree to comply with all such laws and regulations, which may include but are not limited to, the U.S. Foreign Corrupt Practices Act, UK Bribery Act, anti-bribery laws of other countries, U.S. Export Administration Regulations, U.S. Department of Commerce – Bureau of Industry and Security Regulations, U.S. International Traffic in Arms Regulations, laws and trade and economic sanctions administered by the U.S. Treasury Department Office of Foreign Assets Control (OFAC) and U.S. Department of State, and relevant laws and regulations of other applicable countries in which transactions may occur. Neither you, nor any person to which you make our Services available or that is acting on your behalf, or, if you are an organization, any of your subsidiaries, or any of your or their directors, officers or employees, or any person owning 50% or more of your equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade and economic sanctions or embargoes.

Further, you may not remove or export from the United States or allow the export or re-export of Your Products and Services in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other applicable laws and regulations of other applicable countries in which transactions may occur.

In addition, you agree not to export, reexport, transmit or otherwise transfer Your Products and Services, whether directly or indirectly: (a) to any person or entity listed or otherwise designated as a blocked, prohibited or trade restricted person or party by the U.S. Commerce Department, U.S. Treasury Department, U.S. Department of State, or other U.S. governmental or law enforcement agencies, as well as other governmental agencies of applicable countries in which transactions may occur; (b) for any purpose or use prohibited by the U.S. government, such as for nuclear, chemical, or biological weapons production or proliferation, or (c) to any destination or transit point subject to trade prohibitions by the U.S. government, as may be amended from time to time, such as the prohibition against transactions or trade with Iran or the Government of Iran.

Assignment. You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without FlavorCloud’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of Washington, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in Seattle, King County, Washington, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties’ consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, King County, Washington. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND FLAVORCLOUD ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU FURTHER AGREE THAT, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THESE TERMS. Notwithstanding the foregoing, nothing in this Section will be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights, or other proprietary rights.

Miscellaneous. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and FlavorCloud agree that these Terms (including any applicable order form(s) or service agreements) are the complete and exclusive statement of the mutual understanding between you and FlavorCloud, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of FlavorCloud, and you do not have any authority of any kind to bind FlavorCloud in any respect whatsoever. You and FlavorCloud agree there are no third-party beneficiaries intended under these Terms. FlavorCloud will have no liability to you, your users, or any third party for any failure by us to perform our obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of FlavorCloud, including, without limitation, an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, civil commotion, shipping or Carrier delays or failures, governmental orders or regulations, or other force majeure event.

AI ADDENDUM FOR XB AI BETA PHASE  

FlavorCloud may make available to you a beta version of its XB AI platform (“XB AI”) in its sole discretion. If you elect to use XB AI for any reason and any purpose, then the following additional terms apply: 

Definitions. For purposes of this AI Addendum: 

"AI Customer Input" means information, data, materials, text, prompts, images, works, code, or other content that is input, entered, posted, uploaded, submitted, transferred, or otherwise transmitted by or on behalf of Customer through XB AI. 

"AI Customer Output" means information, data, materials, text, images, code, works, or other content generated by or otherwise output from XB AI in response to AI Customer Input. 

"AI Technology" means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content based on user-supplied prompts. 

"Training Data" means any and all information, data, materials, text, prompts, images, code, and other content that is used by or on behalf of FlavorCloud to train, validate, test, retrain, or improve any AI Technology incorporated into or used with XB AI. 

Use Restrictions. In addition to the restrictions set forth in the main Terms, you shall not, and shall not permit any third party to: 

(a) reverse engineer, disassemble, decompile, decode, or duplicate XB AI, reproduce Training Data, engage in model extraction, or otherwise attempt to derive or gain access to any source code, algorithm, model, model weights and parameters, or other underlying AI Technology or component of XB AI; 

(b) access or use XB AI or any AI Customer Output to develop, train, or improve any other AI Technology or a competing or similar product or service; 

(c) use web scraping, web harvesting, web data extraction or any other method to extract data from XB AI or any AI Customer Output; 

(d) use XB AI to create or generate AI Customer Output, or use AI Customer Output in a manner, that you know or should know infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; 

(e) submit, enter, post, or otherwise transmit or process any personal information as defined in our Privacy Policy through XB AI. 

Customer Responsibilities for AI Output. You are solely responsible for (a) evaluating (including by human review) AI Customer Output for accuracy, completeness, and other factors relevant to your use before using, distributing, or relying on the AI Customer Output and (b) your decisions, actions, and omissions in reliance or based on the AI Customer Output. 

Service Suspension. FlavorCloud may temporarily suspend your access to XB AI if: (a) FlavorCloud reasonably determines that there is a threat or attack on XB AI; (b) your use of XB AI disrupts or poses a security risk to XB AI, to FlavorCloud, or to any other customer of FlavorCloud; (c) you are using XB AI for fraudulent or illegal activities; (d) FlavorCloud's provision of XB AI to you is prohibited by applicable law; or (e) you are using XB AI in material violation of these Terms or this AI Addendum. FlavorCloud will use commercially reasonable efforts to provide written notice of any suspension and to resume providing access as soon as reasonably possible after the event giving rise to the suspension is cured. 

Ownership of AI Content. As between you and FlavorCloud, FlavorCloud owns all right, title, and interest in and to the AI Customer Input and the AI Customer Output (collectively, the “AI Content”), provided that FlavorCloud hereby grants to you a non-exclusive, royalty-free, perpetual, worldwide license to reproduce, distribute, and otherwise use and display the AI Content solely for you to use and exploit the AI Content for your internal business operations in accordance with these Terms. 

Use of AI Content for Improvement. You agree that FlavorCloud may use, reproduce, modify, and otherwise process AI Customer Input and AI Customer Output to train, develop, adapt, modify, enhance, or improve XB AI and other products or services, including by retraining or fine-tuning AI models or using such content to create context for such models. 

Restrictions on Sensitive Information. You agree not to upload or provide FlavorCloud with any personal information as defined in our Privacy Policy or any sensitive personal information. If you provide FlavorCloud with proprietary information, you understand that FlavorCloud may use that information to improve XB AI as stated above. 

AI-Specific Indemnification. In addition to the indemnification obligations set forth in the main Terms, you shall indemnify, hold harmless, and defend FlavorCloud from and against any and all claims, liabilities, damages, losses and expenses arising from or relating to any third-party claim that (a) the AI Customer Input, or processing or any other use thereof in accordance with these Terms, infringes or misappropriates such third party's intellectual property rights; (b) is based on your use of XB AI in violation of the terms of these Terms or this AI Addendum; or (c) arises from your failure to comply with your responsibilities for evaluating AI Customer Output as set forth in this AI Addendum. 

AI Output Disclaimer. You acknowledge that AI Customer Output (a) may be inaccurate, misleading, biased, or offensive, (b) may be the same as or similar to output XB AI generates for other customers, (c) may not qualify for intellectual property protection, (d) may be subject to third party terms, including open source licenses, and (e) do not necessarily reflect, and may be inconsistent with, FlavorCloud's views. You are solely responsible for evaluating AI Customer Output for accuracy, completeness, and other factors relevant to your use before using, distributing, or relying on such output.