TERMS OF SERVICE
These Terms of Service are entered into by and between you and Harvest SMB Services, Inc. (“Flagstone”) and are effective beginning when you accept this Agreement. The term “you” and “Customer” used throughout these Agreement (defined below) means collectively, the Owners and Brokers. Users are “Owners” when they use the Service to assemble information or create analyses regarding a business that they own (or where the user assists the owner as an employee or service provider). Users are “Brokers” when they are business brokers that use the Service to assemble information regarding an Owner’s business and work with Owners to help sell an Owner’s business. If you are accessing or using the Service as a Broker, you agree to be bound by a separate contract in place with Flagstone relating to your use of the Services for purposes of engaging with Owners on the Services (“Broker Agreement”), that Broker Agreement will control to the extent of any conflict or inconsistency with this Agreement (defined below). The Broker Agreement is available here: https://www.withflagstone.com/content/broker_agreement
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING FLAGSTONE’S PRIVACY POLICY (TOGETHER, THIS “AGREEMENT”). YOUR USE OF THE SERVICES, AND FLAGSTONE’S PROVISION OF THE SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY FLAGSTONE AND BY YOU TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AN ENTITY, ORGANIZATION, OR COMPANY, THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON YOUR BEHALF REPRESENTS AND WARRANTS THAT THEY HAVE AUTHORITY TO BIND YOU TO THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. This Agreement sets forth the terms pursuant to which Customer will be permitted to use the Services. The parties agree as follows:
1. DEFINITIONS
1.1 “Customer Data” means all data, content, or information submitted, uploaded, or otherwise made available by or on behalf of Customer to Flagstone (including through the Services).
1.2 “Documentation” means Flagstone-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).
1.3 “Services” means Flagstone’s websites, including <www.withFlagstone.com>, Flagstone’s web-based platform designed to assist with the process of buying and selling small and medium sized-businesses, and the Professional Services (defined below), if applicable.
2. USE OF THE SERVICES
2.1 Use of the Services. Subject to the terms and conditions of this Agreement, Flagstone grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) right during the term of this Agreement to access and use the online platform provided through the Services, solely in connection with Customer’s internal business operations.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Flagstone grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
2.3 Access. To access the Services, Customer and its users must register for an account and, in doing so, may be required to provide Flagstone with information (such name, email address, or other contact information). Customer agrees that the information it provides to Flagstone is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Only Customer and its designated users, using the mechanisms designated by Flagstone (“Log-in Credentials”), may access and use the Services. Each user must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Flagstone’s breach of this Agreement). Customer will promptly notify Flagstone if Customer becomes aware of any compromise of any Log-in Credentials. Flagstone may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process Log-in Credentials in connection with Flagstone’s provision of the Services or for Flagstone’s internal business purposes. Customer represents and warrants to Flagstone that: (a) it has not previously been suspended or removed from the Services; and (b) its registration and use of the Services is in compliance with all relevant local, state, federal, and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of data. Depending on the account type (i.e., Broker or Owner), Customer may receive access to different features and functionalities of the Services.
2.4 Technical Support Services. For so long as Customer is current with its payment of any applicable fees in accordance with Section 3, Flagstone will use reasonable efforts to provide Customer with technical support services relating to the Services by email, phone, and chat function from 9am-5pm Eastern, Monday through Friday, excluding holidays.
2.5 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services or Documentation; (b) copy, modify, de-compile, reverse engineer, or otherwise attempt to derive the source code, algorithms, or architecture underlying the Services; (c) use the Services to provide services to third parties (e.g., as a service bureau); (d) use the Services for any benchmarking activity or in connection with the development of any competitive product; nor (e) circumvent or disable any security or other technological features or measures of the Services.
2.6 Compliance with Laws. Customer will use the Services and Documentation in compliance with all applicable laws and regulations.
2.7 Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Services and Documentation and immediately notify Flagstone in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Flagstone to prevent or terminate unauthorized use of the Services or Documentation.
2.8 Background Checks. Flagstone may conduct background checks on Customer, including, but not limited to, credit checks, verification of funding, verification of financing, and employment history. If Flagstone determines that background checks on Customer are required, Customer agrees to cooperate fully with Flagstone in those procedures.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms. Certain features of the Service may require Owners to pay fees based on the Owner’s use of the Service. Broker will pay Flagstone the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, in accordance with the Broker Agreement (available at https://www.withflagstone.com/content/broker_agreement. All amounts payable under this Agreement are in U.S. dollars and are non-refundable unless otherwise specifically provided for in this Agreement.
3.2 Payment Processing. Flagstone may contract with a third party to process any payments submitted for or through theService (“Payment Processor”). By making any purchase for or through theService, Customer authorizes Flagstone to share any of Customer’s information with the Payment Processor in order to process Customer’s payment. Flagstone may use Stripe as its Payment Processor (https://stripe.com). In that case,Stripe will collect, use, and process Customer’s information, including payment information, in accordance with Stripe’s privacy policy (which may be accessed at https://stripe.com/privacy), and Stripe’s terms of service (which may be accessed at https://stripe.com/legal/consumer).
3.3 Authorization. Customer authorizes Flagstone and the Payment Processor to charge all sums for the purchases that Customer makes in connection with Customer’s access to or use of the Service, including all applicable taxes, to the payment method Customer specifies. If Customer pays any fees with a credit card, then Flagstone or the Payment Processor may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.
Taxes. Other than net income taxes imposed on Flagstone, Customer will bear all taxes, duties, and other governmental charges resulting from this Agreement.
4. PROFESSIONAL SERVICES; BROKERAGE SERVICES
4.1 Provision of Professional Services. Flagstone may offer certain professional services, including coaching, consulting, and business profiling services related to the buying and selling of small and medium sized-businesses (“Professional Services”). Such Professional Services must be purchased via a separate contract between Flagstone and Customer.
4.2 Brokerage Services. Based on the nature of the Services provided by Flagstone, Flagstone is not a broker-dealer registered with the Securities and Exchange Commission or any similar state regulator and is not a member of the Financial Industry Regulatory Authority. Flagstone may partner with a third-party brokerage company to offer certain business brokerage services in connection with the Services (“Brokerage Services”). Any Brokerage Services purchased by Owner will be provided by the Broker and governed by the terms set forth in a separate agreement between Broker and Owner.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. Flagstone owns all right, title and interest in and to the Services and Documentation, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein and thereto. Flagstone grants to Customer a limited right to use the Services and Documentation under this Agreement. Customer will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Flagstone reserves to itself all rights to the Services and Documentation not expressly granted to Customer in accordance with this Agreement.
5.2 Customer Data. As between the parties, Customer owns all right, title and interest in and to the Customer Data provided to Flagstone. Customer grants to Flagstone a worldwide, irrevocable, perpetual, non-exclusive license to use such Customer Data in order to provide the Services to Customer.
5.3 Financial Data Provided to Broker. Owner is solely responsible for all Customer Data that Owner provides to Broker, including but not limited to financial information Owner provides to Broker through the Service and Customer Data that is updated in connection with the Broker’s services (and the accuracy thereof). Flagstone and Broker do not warrant that any outputs of the Services will be accurate or complete. Broker and Flagstone have no responsibility for, and Owner is solely responsible for, (i) all uses of the Customer Data or Services outputs by Owner and (ii) any Customer Data or other Services outputs that Owner disseminates or makes available to third parties.
5.4 Aggregated Data. As between the parties, Flagstone solely owns the aggregated and de-identified statistical data derived from the operation of the Services, including, without limitation, the performance results for the Services (the “Aggregated Data”). Nothing in this Agreement will be construed as prohibiting Flagstone from utilizing the Aggregated Data for purposes of operating Flagstone’s business. Flagstone will not disclose to any third party any Aggregated Data that reveals the identity, whether directly or indirectly, of any individual or Customer.
5.5 Feedback. If Customer provides any feedback to Flagstone concerning the functionality and performance of the Services (including identifying potential errors and improvements), Customer hereby assigns to Flagstone all right, title, and interest in and to the feedback, and Flagstone is free to use the feedback without payment or restriction.
6. TERM AND TERMINATION
6.1 Term. This Agreement will commence upon acceptance of this Agreement by Customer and will continue until terminated in accordance with the terms of this Agreement.
6.2 Termination for Convenience. Flagstone may terminate this Agreement at any time upon 30 days’ notice to Customer. Customer may terminate its account and this Agreement at any time by deleting its account and discontinuing use of the Services.
6.3 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 6.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Broker fails to timely pay any fees, Flagstone may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
6.4 Post-Termination Obligations. If this Agreement is terminated for any reason, Broker will pay to Flagstone any fees or other amounts that have accrued prior to the effective date of the termination (unless terminated by Flagstone pursuant to Section 6.2 above), any and all liabilities accrued prior to the effective date of the termination will survive, and Customer will provide Flagstone with a written certification signed by an authorized Customer representative certifying that all use of the Services and Documentation by Customer has been discontinued.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s delivery or performance of this Agreement.
7.2 By Customer. Customer represents and warrants to Flagstone that Customer has the necessary licenses, rights, consents, and permissions to provide the Customer Data to Flagstone and to authorize Flagstone to access and use the Customer Data as necessary to provide the Services.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, FLAGSTONE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. FLAGSTONE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. FLAGSTONE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. FLAGSTONE DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. FLAGSTONE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. FLAGSTONE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES.
FLAGSTONE MAKES NO REPRESENTATIONS ABOUT THE QUANTITY, SUFFICIENCY, TYPE OR QUALITY OF OWNERS’ BUSINESSES ON THE SERVICE. WE DO NOT GUARANTEE THAT THE INFORMATION PROVIDED BY THE BROKERS AND OWNERS WHETHER WITHIN OR APART FROM THE SERVICES IS ACCURATE OR COMPLETE. YOU UNDERSTAND AND ACCEPT THAT ANY BUSINESSES AND CONTACT INFORMATION COLLECTED ARE NOT UNDER FLAGSTONE’S CONTROL AND HAVE NOT BEEN SCREENED, DILIGENCED OR VALIDATED BY US AND ARE NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND ALL RISKS OF CONDITION, USE, QUALITY, OR FITNESS ARE YOURS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ITS USERS, OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING FLAGSTONE OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALINGS WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CUSTOMER DATA.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 7 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. FLAGSTONE DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT FLAGSTONE IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
8. CUSTOMER INDEMNIFICATION
8.1 Defense. Customer will defend Flagstone from any actual or threatened claim, preceding or suit (“Claim”) brought by a third party arising out of or based upon Customer’s use of the Services or Customer’s breach of any of the provisions of this Agreement if Flagstone gives Customer reasonable written notice of the Claim. Customer will not settle any Claim without Flagstone’s prior written consent. Flagstone will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing.
8.2 Indemnification. Customer will indemnify Flagstone from and pay all damages, costs, and attorneys’ fees finally awarded against Flagstone in any Claim under Section 8.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Flagstone in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim under Section 8.1.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, FLAGSTONE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF FLAGSTONE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL FLAGSTONE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BROKER TO FLAGSTONE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FLAGSTONE TO BROKER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10. GENERAL
10.1 Relationship. Flagstone will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
10.2 Assignability. Customer may assign its right, duties, and obligations under this Agreement without Flagstone’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Customer may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of Customer’s obligations under this Agreement. Flagstone may freely assign this Agreement without restriction. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the parties and their successors and assigns.
10.3 Subcontractors. Flagstone may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Flagstone remains responsible for all of its obligations under this Agreement.
10.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to Flagstone at 817 Broadway, New York, NY 10003 and to Customer at the address specified on Customer’s account page, each with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 10.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.5 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
10.6 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in New Castle County, Delaware in connection with any action arising out of or in connection with this Agreement.
10.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
10.9 Modification of Terms. Flagstone may, from time to time, modify the terms of this Agreement. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. Flagstone may require Customer to accept modified terms in order to continue use of the Services. If Customer does not agree to the modified terms, Customer should discontinue use of the Services. Except as expressly permitted in this Section 10, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties.
10.10 Additional Terms. Customer’s use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that Flagstone may post on or link to from the Services (the “Additional Terms”), including Plaid’s Terms of Service available at https://plaid.com/legal/ and Quickbooks’ Terms of Service available at https://quickbooks.intuit.com/global/terms-of-service/. All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
10.11 Modification of the Service. Flagstone reserves the right to modify or discontinue all or any portion of the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice. Flagstone will have no liability for any change to the Services, including any paid-for functionalities of the Services, or any suspension or termination of Customer’s access to or use of the Services.
10.12 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Customer’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement, nor does it affect the validity of any separate agreements between the parties relating to Professional Services relating to the Services that Flagstone may provide. No employee, agent, or other representative of Flagstone has any authority to bind Flagstone with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
