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Privacy and Terms

Privacy Policy

April 1, 2021

Your privacy is important to Function Flo Corporation (“Function Flo”). This Function Flo Privacy Policy (“Privacy Policy”) describes how Function Flo may collect, use, store, disclose, and process your personal information, through your access to or use of Function Flo products and services, including those at https://www.functionflo.com, related websites, mobile software applications, and other offerings (collectively, the “Services”) or being a customer of a user of our Services (“Customer”). If you are a Customer, Function Flo will generally not collect your personal information directly from you. Your agreement with the relevant user of the Services should explain how such user shares your personal information with Function Flo, and if you have questions about this sharing, then you should direct those questions to the user of the Services.  By using these Services, you signify your acceptance of this Privacy Policy. If you do not agree to this Privacy Policy, please do not use the Services. Function Flo may change this Privacy Policy from time to time by posting changes at this URL and may send notification emails. Your continued use of the Services following the posting of such changes will be deemed your acceptance of those changes.

Function Flo encourages you to read this Privacy Policy in its entirety, but here are a few key points of our privacy practices:

Privacy Policy Applicability

This Privacy Policy applies when you access the Services or share information with Function Flo, and may be revised at any time.  As a processor of transactions and provider of the Services, we may collect, use and disclose personal information about Customers when we act as a provider of Services to other users.  More

Information We Collect from You 

We collect all information that you provide including information you provide via the Services, your devices (e.g., computers, smartphones, and tablets), telephone and email, as well as information we receive from partners and through the use of cookies and other such technologies. If you are a Customer of a user of the Services, when you make payments or conduct transactions through a user’s website or application or device or order goods or services at such user’s physical restaurant location, we will receive your transaction and personal information.  More

How We Use Your Information

We process your personal information with your consent or as needed to provide you or other users the Services. We may also use your personal information to comply with legal obligations, operate our business, protect the vital interests of you, our customers or users, or the public, or for other legitimate interests of Function Flo as further described below. More

How We Share Your Information 

We share your information with our partners, service providers, contractors, agents and third party vendors as they need it to fulfill Services or orders, or for other requests you make of Function Flo.  We may also share your information to comply with law or for other legitimate interests. More

How We Store and Secure Your Information

Function Flo may store your information in any country where Function Flo or its affiliates, partners, or providers operate facilities, and will retain your information as long as necessary for the purposes outlined in this Privacy Policy. Function Flo takes technological and organizational measures to protect your personal information against loss, theft, and unauthorized access, use, disclosure or modification. More

Accessing and Updating Your Information

You can access, get copies of, delete, change or correct your personal information, or request changes to our use of your personal information by using the contact information below. If you are a Customer of a user of the Services, please direct your requests directly to such user. More

Additional Privacy Information 

Function Flo’s databases are located in the United States and you consent to the transfer or your personal information from your location to the United States. The Services is not for use by children under the age of 13 years old. You may have additional rights under applicable law. If you have any questions about this privacy policy, please contact us via the information below. More

Privacy Policy Applicability

This Privacy Policy applies when you access the Services or share information with Function Flo, as indicated below or you are a Customer. By using the Services, you consent to this Privacy Policy, which may be updated by us at any time. If you do not consent to this Privacy Policy for any reason, please do not use the Services or share your information with us. Please note that this Privacy Policy applies only to the Services, and not to any other third party website linked to or from it, or any third party website in which Function Flo content or functionality is embedded. We do not control the privacy policies or practices of others.

As a processor of transactions and provider of the Services, we may collect, use and disclose personal information about Customers when we act as a provider of Services to other users.

Users of the Services are responsible for making sure that the Customer’s privacy rights are respected, including ensuring appropriate disclosures about third party data collection and use. To the extent that we are acting as a data processor for the user of the Services, we will process personal information in accordance with the terms of our agreement with the such user and such user’s lawful instructions

Information We Collect from You

In general, we receive and collect all information you provide via the Services, including through website input fields (including advertisements), phone, email (including email campaigns), web chat, or in other such ways. This includes personal information that can identify or relates to you, including but not limited to your first and last name, telephone number, IP, postal, and email addresses. You have the choice on what information to share and the services you want to engage. You can choose not to provide information to us, but in general some information about you is required in order for you to access certain functionality of the Services, such as those mentioned above or for tracking your preferences, subscribing to a newsletter, or initiating other such actions. 

If you are a Customer of a user of the Services, when you make payments or conduct transactions through a user’s website or application or device or order goods or services at such user’s physical restaurant location, we will receive your transaction and personal information.  Depending on how the user implements our Services, we may receive this information directly from you, or from the such user or third parties. The information that we collect will include payment method information (such as credit or debit card number, or bank account information), purchase amount, date of purchase, and payment method. Different payment methods may require the collection of different categories of information. The user of our Services will determine the payment methods that it enables you to use, and the payment method information that we collect will depend upon the payment method that you choose to use from the list of available payment methods that are offered to you by the user of the Services. When you make a transaction, we may also receive your name, email, billing or delivery address and in some cases your transaction history to authenticate you.

We also may periodically obtain information about you from affiliated entities, partners and other independent third-party sources and will add it to our database of information. For example, we may receive information about your interaction with advertisements on third party websites, including updated postal addresses and demographic information. 

We may use cookies, log files, web beacons, device identifiers, advertising identifiers and similar tracking technologies, including those from third-party service providers like Google Analytics and other cloud-based tools, to automatically collect your preferences, performance data, and information about your web usage when you visit the Services. For example, we may collect your IP address, device and Internet service provider information, Web browser details and the address of any referring website. This may include collecting geolocation signals from your IP address or device settings to determine your location so that we may operate and personalize the Services for you, including to provide more relevant ads and search results.  We may also collect information about your online activity, such as pages viewed and interactions with other users. The Services are not designed to recognize or respond to “do not track” signals received from browsers. You can control the information collected by such tracking technologies or be alerted when cookies are sent by adjusting the settings on your Internet browser or devices, but such adjustments may affect or disable certain functionality of the Services. You can learn more about Google Analytics and your options for opting out of interest-based Google ads at https://adssettings.google.com.  You can learn more about targeted ads and your ability to opt out of receiving interest-based ads at optout.aboutads.info and www.networkadvertising.org/choices.

How We Use Your Information

We process your personal information with your consent or as needed to provide you Services. We may also use your personal information to comply with legal obligations, operate our business, protect the vital interests of you, our customers, or the public, or for other legitimate interests of Function Flo as described in this Privacy Policy.

More specifically, we may use your personal information to: 

  • Optimize and improve the Services – We continually try to improve the Services based on the information and feedback we receive from you, including by optimizing the content on the Services.
  • Personalize the user experience – We may use your information to measure engagement with the Services, and to understand how you and our other users interact with and use the Services and other resources we provide.
  • Improve customer service – Your information helps us to more effectively develop the Services and respond to your support needs.
  • Process transactions – We may use the information you provide about yourself to fulfill your requests and product orders. We do not share this information with outside parties except to the extent necessary to provide the Services, fulfill orders, and related activities.
  • To send periodic emails – The email address you provide through our contact forms, will be used to send information and updates pertaining to the Services. It may also be used to respond to your inquiries or other requests. If you opt in to our mailing list, you may receive emails that include Function Flo news, updates, related product offerings and service information, and marketing material. If at any time you would like to unsubscribe from receiving future emails, we include detailed unsubscribe instructions at the bottom of each email or you may contact us via the contact information below.

We use Square for payment, analytics and other business services. Square collects identifying information about the devices that connect to its services. Square uses this information to operate and improve the services it provides to Function Flo, including for fraud detection. You can learn more about Square and read its privacy policy at https://squareup.com/us/en/legal/general/privacy.

How We Share Your Information

We share your information with our partners, service providers, contractors, agents and third party vendors as needed to fulfill Services. Please note that our partners may contact you as necessary to obtain additional information about you, facilitate any use of the Services, fulfill orders, or respond to a request you submit.

Third-party vendors who provide product, services or functions on our behalf may include business analytics companies, customer service vendors, communications service vendors, marketing vendors, delivery, parcel, and transportation vendors, and security vendors. We may also authorize third-party vendors to collect information on our behalf, including as necessary to operate features of the Services, facilitate the delivery of orders, or provide online advertising tailored to your interests. Third-party vendors have access to and may collect personal information only as needed to perform their functions, may only use personal information consistent with this Privacy Policy and other appropriate confidentiality and security measures, and are not permitted to share or use the information for any other purpose. When we work with these third party vendors or service providers in our capacity as a data processor for your personal information, the General Data Protection Regulation calls these third-party service providers a sub-processor. Sub-processors are service providers who have or potentially will have access to or process personal information on behalf of Function Flo.

We also may share your information:

  • In response to subpoenas, court orders, or other legal process; to establish or exercise our legal rights; to defend against legal claims; or as otherwise required by law. In such cases we reserve the right to raise or waive any legal objection or right available to us.
  • When we believe it is appropriate to investigate, prevent, or take action regarding illegal or suspected illegal activities; to protect and defend the rights, interests, or safety of our company or the Services, our customers, or others; or in connection with our Terms of Service and other agreements.
  • In connection with a corporate transaction, such as a divestiture, merger, consolidation, or asset sale, or in the unlikely event of bankruptcy.

Other than as set out above, we will attempt to notify you when your personal information will be shared with third parties.

Personal Information You Post in Public Areas. When you post a message in a Function Flo forum, chat room, review, or customer feedback, the information you post may be accessible to other users of the Services and the public. If you post personal information anywhere on the Services that is accessible to other users or the public, you are advised that such personal information can be read, collected, used, or disseminated by others and could be used to send you unsolicited information or for other purposes. Accordingly, you assume full responsibility for posting such information and agree that Function Flo is not responsible in any way for personal information you choose to post in these public areas.

Aggregated Information.  We may publish, share, distribute, or disclose personal information that has been aggregated with information from other users or otherwise de-identified in a manner that does not allow such data about you to be separated from the aggregate data and identified as originating from you, to third parties, including Function Flo partners, sponsors, and advertisers. Such information may help Function Flo identify and analyze training, demographic, and psychographic trends and information, and report to third parties how many people saw, visited, or clicked on certain content, areas of the Services, ads, or other materials. We may also use such data for research purposes.

How We Store and Secure Your Information

Personal information collected by Function Flo may be stored and processed in your region, in the United States, and in any other country where Function Flo or its affiliates, subsidiaries, or service providers operate facilities. Function Flo will retain your information as long as necessary for the purposes outlined in this Privacy Policy and for a commercially reasonable time thereafter for backup, archival, fraud prevention or detection or audit purposes, or as otherwise required by law.

Function Flo takes technological and organizational measures to protect your personal information against loss, theft, and unauthorized access, use, disclosure or modification. For example:

  • we transmit data over secured communication channels using SSL Login credentials,
  • all personal information is stored by trusted third party providers (e.g., Microsoft Azure),
  • all systems used to provide the Services are password protected, and
  • all Services usage is restricted on a per-user basis on the principle of least privilege.

We rely on Microsoft’s security programs to protect personal information while stored in their respective controlled facilities.  For more information on Microsoft’s security practices and processes, please see https://azure.microsoft.com/en-us/overview/security/. 

Function Flo complies with applicable data protection laws, including applicable security breach notification requirements.

Accessing and Updating Your Information

To the extent provided by the law of your jurisdiction, you may (i) have the right to access certain personal information we maintain about you and request details about how we process it, (ii) request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes, (iii) request that we update or correct inaccuracies in that information, (iv) object to our use of your personal information, (v) ask us to block or delete your personal information from our database, and (vi) request to download the information you have shared on the Services. You may make these requests and any other inquiries about this Privacy Policy by emailing [email protected] or calling us at (833) 504-4356. Any such requests are subject to the protection of other individuals’ rights and applicable law. Additionally, to help protect your privacy and maintain security, we may take steps to verify your identity before granting you access to the information. To the extent permitted by applicable law, a charge may apply before we provide you with a copy of any of your personal information that we maintain.

If you are a Customer of a user of the Services, please direct your requests directly to such user. For example, if you are making, or have made, a purchase from a merchant using our Services and we are processing transaction information on behalf of such user, and you have a request that is related to the transaction information that you provided as part of the transaction, then you should address your request directly to the merchant.

Additional Privacy Information

Data Transfer. Our databases are currently located in the United States. Function Flo makes no claim that its Services are appropriate or lawful for use or access outside the United States. If you access the Services from outside the United States, you are consenting to the transfer of your personal information from your location to the United States. You are solely responsible for complying with all local laws, rules and regulations regarding online conduct and access to the Services. By sending us your information, you further consent to its storage within the United States.  Where applicable law requires us to ensure that an international data transfer is governed by a data transfer mechanism, we use one or more of the following mechanisms: EU Standard Contractual Clauses with a data recipient outside the European Economic Area or the UK, or verification that the recipient has implemented Binding Corporate Rules.

Collection of Data from Children. The Services are not directed to children, and you may not use the Services or provide any personal information to Function Flo if you are under the age of 13 or if you are not old enough to consent to the processing of your personal information in your country. 

Your California Privacy Rights (“Statement”). 

Statement as required by the California Consumer Privacy Act of 2018 (“CCPA”)

The provisions below supplement the information provided above and apply solely to individuals that are residents of California and qualify as a “Consumer” under the CCPA. This Statement provides additional information about how we collect, use, disclose and otherwise process the personal information of these individuals, either online or offline, within the scope of the CCPA. Any terms defined in the CCPA or as otherwise defined in our Privacy Policy have the same meaning as used in this Statement.

When we use the term “personal information” in this Statement, we mean information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.

A.) CCPA personal information table

The below table summarizes:

  • The categories of personal information collected by Function Flo in the past 12 months;
  • The sources of collection of the personal information;
  • How we use your personal information; and
  • The categories of personal information disclosed for a business purposes by Function Flo in the past 12 months.

Please see the other sections of this Privacy Policy for additional information on Function Flo’s information practices, including more detail on how we use and disclose your personal information.

Identifiers, such as your name, address, phone number, email address, date of birth or other similar identifiers

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Automatically collected
  • Provided to Function Flo by our business partners
  • Provided to Function Flo by our service providers
  • Provided to Function Flo by our merchant users of the Services

Commercial or business purpose:

  • To provide, maintain and support our Services
  • To manage our business and for internal operational purposes
  • To advertise and market to you
  • To personalize your experience
  • To communicate with you or provide information you have requested

How we disclose your personal information:

  • For legal, compliance and security-related purposes
  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our business partners
  • With our third-party service providers
  • With legal and other regulatory authorities

California Customer Records (Cal. Civ. Code § 1798.80(e))

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Provided to Function Flo by our business partners
  • Provided to Function Flo by our service providers
  • Provided to Function Flo by our merchant users of the Services

Commercial or business purpose:

  • To provide, maintain and support our Services
  • To manage our business and for internal operational purposes
  • To advertise and market to you
  • To communicate with you or provide information you have requested
  • For legal, compliance and security-related purposes

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our business partners
  • With our third-party service providers
  • With legal and other regulatory authorities

Protected Classification Characteristics

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Provided to Function Flo by our merchant users of the Services

Commercial or business purpose:

To provide, maintain and support our Services

  • For legal, compliance and security-related purposes

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our third-party service providers

Commercial Information

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Provided to Function Flo by our business partners
  • Provided to Function Flo by our service providers
  • Provided to Function Flo by our merchant users of the Services

Commercial or business purpose:

  • To provide, maintain and support our Services
  • To manage our business and for internal operational purposes
  • To personalize your experience
  • For legal, compliance and security-related purposes

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our business partners
  • With our third-party service providers
  • With legal and other regulatory authorities

Biometric Information

Collected: No

Internet/Network Information

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Automatically collected
  • Provided to Function Flo by our service providers

Commercial or business purpose:

  • To provide, maintain and support our Services
  • To manage our business and for internal operational purposes
  • To personalize your experience
  • To advertise and market to you

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our third-party service providers

Geolocation Data

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Automatically collected
  • Provided to Function Flo by our service providers

Commercial or business purpose:

  • To provide, maintain and support our Services
  • To personalize your experience
  • To advertise and market to you
  • For legal, compliance and security-related purposes

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our business partners
  • With our third-party service providers

Sensory Information

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Provided to Function Flo by our service providers

Commercial or business purpose:

  • To provide, maintain and support our Services
  • For legal, compliance and security-related purposes

How we disclose your personal information:

  • With our third-party service providers

Profession/Employment Information

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo

Commercial or business purpose:

  • To provide, maintain and support our Services

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our third-party service providers

Non-Public Education Information (20 U.S.C. § 1232g, 34 C.F.R. Part 99)

Collected: No

Inferences

Collected: Yes

Categories of sources:

  • Provided directly to Function Flo
  • Provided to Function Flo by our business partners
  • Provided to Function Flo by our service providers
  • Provided to Function Flo by our merchant users of the Services

Commercial or business purpose:

  • To provide, maintain and support our Services
  • To manage our business and for internal operational purposes
  • To personalize your experience
  • To advertise and market to you

How we disclose your personal information:

  • With our merchant users of the Services and employees  of our merchant users of the Services
  • With our business partners
  • With our third-party service providers

B.) Categories of personal information sold 

Function Flo does not “sell” personal information as most individuals would typically understand that term. However, we do allow certain third-party advertising partners to collect information about Consumers through our Services for purposes of serving ads that are more relevant and other personalization features, for tracking and analytics, and for fraud detection and reporting. The categories of personal information impacted may include:

  • Identifiers;
  • Internet/Network Information; and
  • Inferences.

Each of the above categories of information may be disclosed to our third-party service providers or business partners depending on the nature of a user’s interaction. To the extent this practice is interpreted to constitute a “sale” under the CCPA, please see our Privacy Policy section titled “Information We Collect From You” for more information including how to exercise your rights to opt-out of cookies, analytics and personalized advertising. To the extent that these practices qualify as “sales” under the CCPA, you may have the right to opt out as described in the “How to invoke your rights” section below. Function Flo has no actual knowledge that the “sales” described above include the personal information of individuals under 16 years of age.

  1. Description of rights available to Consumers

A number of individual rights are available to individuals under the CCPA relating to personal information that we have collected (subject to certain limitations at law), including:

  • The right of access: you have the right to request that an in-scope business that collects personal information from you, disclose the following in relation to the preceding 12 month period, upon verification of your identity: (i) the categories of personal information collected about you, (ii) the categories of sources where the personal information was collected, (iii) the business or commercial purposes for collecting (or where applicable, selling) the personal information, (iv) the categories of personal information that we have disclosed to third parties for a business purpose along with the corresponding recipients, (v) the categories of personal information we have sold along with the corresponding recipients, and (vi) the specific pieces of personal information collected about you.
  • The right of deletion: you have the right to request that an in-scope business delete personal information that it has collected from you, subject to certain exceptions.
  • The right to opt out of personal information sales: you have the right to request that an in-scope business refrain from selling personal information it has collected about you to third parties now or in the future. If you are under the age of 16, you have the right to opt in, or to have a parent or guardian opt in on your behalf, to such sales.
  • The right against discrimination: you have the right to not be discriminated against as a result of exercising any of the above rights. However, please note that if the exercise of these rights limits our ability to process personal information (such as in the case of a deletion request), we may no longer be able to provide you with our Services or engage with you in the same manner.

Please note that your ability to invoke the rights above are limited pursuant to the scope and limitations of the CCPA, including any available exceptions. For example, an access request can only be made twice by a Consumer within a 12 month period.

  1. How to invoke your rights

Function Flo has established an individual rights portal for the purposes of submitting your individual rights requests above. The link to Function Flo’s individual rights portal can be found here. Individual rights requests can also be submitted to Function Flo through the below channels:

  • By email:  [email protected]
  • By post: Function Flo Corporation, Attn: Privacy Dept., 1807 Crooked Lane, Austin, Texas 78741
  • By phone (toll-free): (833) 504-4356

Once an individual rights request has been submitted, Function Flo may ask you for additional information in order to verify your identity or to provide additional details to help us respond to your request. This may include your name, email address, phone number or other details related to your use of Function Flo’s Services. Where applicable, these requests can be submitted by an authorized agent through the channels described above in accordance with the applicable law. Please note that in certain circumstances, we may refuse to act or impose limitations on your rights, as permitted by the applicable law.

As noted above, we do not “sell” personal information as traditionally defined, but certain third-party advertising practices may qualify as “sales” under the CCPA. To the extent applicable, an opt-out mechanism has been provided in the “Categories of personal information sold” section above. You do not need to create an account with us to exercise your right to opt out of personal information sales. However, if applicable, we may ask you to provide additional personal information so that we can properly identify you in our dataset and to track compliance with your opt out request. We will only use personal information provided in an opt out request to review and comply with the request. If you choose not to provide this information, we may only be able to process your request to the extent we are able to identify you in our systems. Once you make an opt-out request, you may change your mind and opt back in to future personal information sales at any time by contacting us at [email protected]

  1. Updates to this Statement

We will update this Statement from time to time. When we make changes to this Statement, we will change the “Last Revised” date at the beginning of this Privacy Policy. All changes shall be effective from the date of publication unless otherwise provided in the notification.

  1. California “Shine the Light” disclosure

California Civil Code Section 1798.83 permits our customers who are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please e-mail us or write to us at the addresses below.

How to Contact Us. You can call us at (833) 504-4356, e-mail us at [email protected] or write to us at Function Flo Corporation, Attn: Privacy Dept., 1807 Crooked Lane, Austin, Texas 78741. Depending on where you are located, you may also have a right to complain to your local data protection regulator.

Download a copy of this Privacy Policy

Terms

Revised April 1, 2021

1. ACCEPTANCE OF TERMS

Function Flo Corporation (“Function Flo,” “we,” “us,” or “our”) provides technology-enabled services, including the Software as a Service offering branded as Function Flo, the website at https://www.functionflo.com, any Mobile Apps (as defined below), digital ordering features that Function Flo offers to Merchants (as defined below), including a Merchant’s online ordering page and order & pay at the table features (collectively “Digital Ordering”); and Payment Transactions facilitated on the Function Flo point of sale or via Function Flo’s scan to pay feature (“Point of Sale”), and other related software, content, and services, including all versions and upgrades thereto, which allow you to engage directly with us or through a merchant customer (“Merchant”) that uses Function Flo (collectively, the “Services).  Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (“TOS”). Function Flo may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available Function Flo.

PLEASE REVIEW THIS TOS CAREFULLY. BY (i) CLICKING ON THE “I AGREE,” “SUBMIT,” OR SIMILAR BUTTON ON OUR WEBSITE, ONLINE ORDERING PAGE, MOBILE APP OR OTHER FEATURE OFFERED UNDER OUR SERVICES; OR (ii) REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. YOU ALSO AGREE THAT CLICKING ON THESE BUTTONS ON THE WEBSITE, ONLINE ORDERING FEATURE, MOBILE APP OR REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES SHALL CONSTITUTE YOUR ELECTRONIC SIGNATURE TO THIS TOS OR OTHER SUCH DOCUMENT DISPLAYED WITH THE BUTTON(S) AND RELATING TO THE SERVICES. YOU FURTHER AGREE THAT YOUR ELECTRONIC SIGNATURE ON THIS TOS AND ANY OTHER DOCUMENT SHALL HAVE THE SAME LEGAL EFFECT UNDER STATE AND FEDERAL LAW AS IF YOU SIGNED THE DOCUMENTS IN INK ON PAPER. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.

THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 15 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM. 

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.  When you pay for a Purchase made through Point of Sale, the Mobile Apps, or Digital Ordering, you authorize Function Flo to charge your credit or debit card or other permitted payment method (“Payment Method”) on behalf of the participating Merchant from which you are making a purchase.

2. SERVICES; RIGHTS

  1. Services.   Function Flo provides technology services to Merchants to enable dining customers (“Guests”) to, among other things, place orders for food, beverages, and related products and services provided by the Merchants (“Purchases”) and facilitates payment to the Merchants by the Guests for those purchases with an eligible Payment Method (“Payment Transactions”). Function Flo facilitates Purchases with Merchants and processes Guests’ payments to Merchants, on behalf of each Merchant.
    1. Opening and Accessing a Function Flo Digital Ordering Account.  When you use Function Flo’s Digital Ordering services on a Merchant website or premises, you can choose whether you would like to register and create a Function Flo Digital Ordering Account (“Account”). If you create an Account, you may save your credit or debit card and other personal information to make future orders faster and easier. You may make Purchases without creating an Account, but you will not be able to save any personal information or preferences for future Purchases. In order to use the Mobile App, you must download the app to your mobile device and create an Account. If you use the same email address for Digital Ordering, the Mobile App, and/or any Merchant loyalty programs, you will be registered for one account across those services.

When you create an Account, we will ask you for certain personal information such as your name, mobile number, and email address, which will be stored with Function Flo to facilitate your transactions. You may also choose at any time to store Payment Method information, which can be used to pay for future Purchases. Information on how we collect, use, disclose, store, share, and process the personal information you provide to us can be found in Section 3 below. You agree to provide true, accurate current and complete information for your account registration, and you agree not to misrepresent your identity or your Payment Method information. It is your responsibility to keep the information you provide us up-to-date and accurate.

Function Flo may, in its sole discretion, terminate or refuse to approve registrations for Function Flo Digital Ordering Accounts with or without cause or notice, other than any notice required by law. 

Only you have the right to access and use your Account. You are responsible for ensuring that your login information and Payment Method information remain confidential at all times. Function Flo will assume that if your login or Payment Method are used to access the Services, the user has the legal authority to use such login or Payment Method. If you become aware of unauthorized use of your login or Payment Method, you agree to notify Function Flo immediately by email at [email protected] You remain liable for any activity on your Account until such time as Function Flo has been notified and has had an opportunity to take appropriate action.

  1. Using your Account. Once you have created your Account, you will be able to make Purchases from Merchants through the Digital Ordering features and the Mobile App. You can make changes to your Account information by logging in on any online ordering page or within the Mobile App. You will also be able to view your recent Purchase and Payment Transaction history by logging in to your Account.  You acknowledge and agree that all aspects of Purchases beyond the services that Function Flo provides, as well as all engagement and interactions between the Merchant and you, are solely the responsibility of the Merchant.
    1. Digital Ordering.  Digital Ordering features, including online ordering pages and order & pay at the table, allow you to make Purchases from a participating Merchant using your own computer or mobile device. You can also manage your Function Flo account from any online ordering page by logging in. You can see your order history from that Merchant while you are logged in.

Some Digital Ordering features may allow you to place multiple orders as part of one Purchase. When you open a check, you may be required to provide payment information prior to completing your Purchase. By providing your payment information for pre-authorization, you agree to pay the total amount shown when you submit the final portion of your order. If you fail to complete payment for your Purchase, the Merchant may be able to charge your payment method after a certain amount of time has passed.

  1. Loyalty and Rewards.  Function Flo provides technology services that enable Merchants to offer loyalty and/or rewards programs to Guests. By enrolling in any loyalty program offered by Function Flo or by a Merchant using the Services, you expressly agree to these program terms.

You may enroll in a Merchant’s loyalty program by signing up at the Merchant or while placing an order, subject to the Merchant’s terms and conditions related to its loyalty program. Once you have enrolled, you may earn points when you make Purchases from Merchants, which can later be redeemed for discounts or other benefits. If you initiate a return, chargeback, or refund, points associated with the Purchase may be revoked. You may check your current rewards balance by clicking the link you receive when you sign up for a Merchant’s loyalty program.

If you choose to enroll in a Merchant’s loyalty program, you agree that the Merchant may contact you using the contact method(s) you provide with program information, offers, and other marketing and transactional communications. Any information shared by Function Flo with Merchants is subject to our Privacy Policy (as defined in Section 3 below). Once a Merchant has received information you provide from Function Flo, the use and governance of that information will be managed by the Merchant, which may have separate terms and conditions and privacy practices and policies. Function Flo does not authorize Merchants to send marketing messages to your mobile number. Merchants may not send marketing messages to your mobile number unless you expressly authorize the Merchant to send you such messages.

Each Merchant is solely responsible for the operation and maintenance of its own loyalty program, including establishing the number of points that you may earn when you make Purchases, setting redemption thresholds, and determining how and when points may be redeemed for rewards. Merchants have the ability to modify their loyalty programs and/or to modify the points balance held by any individual Guest. Function Flo is not responsible for notifying you in the event that the Merchant changes any element of its loyalty program or ceases to offer a loyalty program. The Merchant is solely responsible for communicating program or points balance changes to you.

Points earned through any loyalty program offered by Function Flo or a Merchant using Function Flo have no cash value and cannot be transferred, redeemed, or sold for cash. Subject to notice requirements under applicable laws and regulations, Function Flo reserves the right, in its sole discretion and at any time, to modify, suspend, terminate, revalue or cancel its own loyalty program and/or the technology services that enable Merchants to offer loyalty programs through the Services. In the event Function Flo terminates any loyalty program offered by Function Flo or by a Merchant, Function Flo will, in accordance with the applicable laws and regulations, maintain records of Guest’s loyalty points for one year following termination of the loyalty program in the event the loyalty program is reinstated within one year of termination. Function Flo reserves the right to adjudicate any discrepancies or disputes regarding rewards allocations or these program terms in its sole discretion and you agree to abide by any such adjudication.

  1. Merchant Responsibilities.  You hereby acknowledge and understand that each Merchant is solely responsible for all aspects of its own day-to-day operations, including without limitation provision of food and beverages (by any method, including through delivery), service, environment, and overall quality and accuracy.
    1. Merchant Compliance with Applicable Laws and Regulations.  You hereby acknowledge, agree and understand that each Merchant is solely responsible and liable for all marketing, selling, pricing, packaging, and provision of any products or services offered to Guests through the Services in compliance with all applicable laws and regulations. Function Flo makes no representation or warranty regarding whether a Merchant holds any applicable permit, license, registration, or other credential for its business; whether representations by a Merchant are true and accurate; or whether a Merchant complies with applicable laws and regulations, and Function Flo is not responsible for the quality of the products or services provided by Merchants.
    2. Alcoholic Beverages.   Certain Merchants may hold alcoholic beverage licenses and sell alcoholic beverage products. The Merchant holding the alcoholic beverage license must approve your Purchase before the Purchase will be finalized, and only upon acceptance of the order by the Merchant will your Payment Method be charged. The portion of the funds charged to your Payment Method which pertains to your alcoholic beverage product Purchase may be held in an account for the benefit of the alcoholic beverage supplier in compliance with applicable laws and regulations. Function Flo acts as a third-party technology provider to and facilitates payment processing on behalf of the Merchant, and has no responsibility or liability to you or any other person for any alcoholic beverage products you may purchase from a Merchant or for any Merchant’s compliance with applicable laws and regulations, including without limitation, local regulations regarding sale of alcohol. By making a Purchase through the Services for alcoholic beverage products, you represent and warrant that (i) you are twenty-one (21) years of age or older, (ii) you are not procuring alcoholic beverage products for a person under twenty-one (21) years of age and, (iii) you will provide bona fide government issued photo identification evidencing your age.
  2. Closing your Account.  You may close your Account at any time and without cost, but you will remain liable for any outstanding Purchases as well as any fees or other charges incurred. Function Flo will not issue refunds for amounts previously incurred through our Services once you close your account.

You can close your account by emailing [email protected]   In certain cases, we may not allow you to close your Account, including without limitation, (a) to evade an investigation; (b) you have open or pending Purchases or Payment Transactions; or (c) if you owe money to Function Flo or a Merchant due to your use of the Services.

  1. Grant. Subject to and conditioned on your compliance with this TOS, Function Flo hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for your personal, non-commercial use. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Function Flo.
  2. Mobile Apps. Function Flo may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”) and that enables you to make Purchases from participating Merchants for pickup and/or delivery. Your access to and use of Mobile Apps is subject to and governed by this TOS. If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), Google Play Store (each, an “Android Mobile App”) or other app store provider, your use of such iOS Mobile App, Android Mobile App or other app, as applicable, is further subject to your compliance in all material respects with the terms and conditions of (i) the Usage Rules set forth in the iTunes App Store Terms of Service, (ii) Google Play Store Terms of Service or (iii) other app store provider’s terms of service, as applicable. This TOS is between you and Function Flo only, and not with Apple Inc. (“Apple”), Google LLC (“Google”) or any other app store provider, and Apple, Google or such other app store provider is not responsible for iOS Mobile Apps, Android Mobile Apps or such other Mobile Apps, as applicable, and the contents thereof; however, Apple and Apple’s subsidiaries, Google and Google’s subsidiaries or such other app store provider and its subsidiaries are third-party beneficiaries of this TOS with respect to iOS Mobile Apps, Android Mobile Apps or Mobile Apps, as applicable.
  3. To use the Mobile App, you must have a mobile device that is compatible with the Mobile App. Function Flo does not warrant that the Mobile App will be compatible with your mobile device. You may use mobile data in connection with the Mobile App and incur additional charges from your wireless provider for these services. You agree that you are solely responsible for such charges.  Trademarks.  You may not use the Function Flo name, brands, trademarks, service marks and logos that Function Flo makes available on the Services (“Marks”). Function Flo claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name.  You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Function Flo.  You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Function Flo’s benefit.  

3. PRIVACY POLICY

In addition to this TOS, the Function Flo Privacy Policy at https://www.functionflo.com/privacy (“Privacy Policy”) applies to how Function Flo may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Function Flo may receive certain information about you, including personal information, as set forth in the Privacy Policy, and Function Flo may collect, use, disclose, store, share, and process such personal information in accordance with such Privacy Policy. 

4. PROPRIETARY RIGHTS

  1. You grant Function Flo and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
  2. The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Function Flo retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Function Flo, Function Flo and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Function Flo reserves all rights not expressly granted to you in this TOS.
  3. You retain all rights, title and interest in and to any text, graphics, videos, images or other data that you upload to the Services (“User Content”). You grant to Function Flo a non-exclusive, royalty-free, fully paid-up, worldwide license to access, use, copy, modify (including the right to create derivative works of), display and transmit User Content for the purpose of our providing the Services and in accordance with our Privacy Policy. You are solely responsible for the accuracy, quality, content, and legality of User Content, the means by which User Content is acquired, and any transfer of User Content outside of the Services by you or any third-party authorized by you. You represent, warrant and covenant that you have all rights necessary to upload the User Content to the Services and to otherwise have such User Content used or shared, as applicable, in relation to the Services.

Function Flo does not review, pre-screen or filter all User Content, or Third-Party Services, but we do reserve the right to delete or refuse to accept any User Content or Third-Party Services in our sole discretion. In addition, Function Flo has the right (but not the obligation) in our sole discretion to reject or delete any content that we reasonably consider to be in violation of this TOS or applicable laws and regulations.

5. USER CONDUCT AND RESTRICTIONS; PERMITTED ACTIVITIES

  • In your use of the Services, you will not: 
    1. use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS; 
    2. use the Services to transfer money or process a Payment Transaction that is unrelated to a purchase of a product or service from a Merchant (You may only use the Services to make Purchases of a legitimate, bona fide product or service that is purchased from a Merchant); 
    3. reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services; 
    4. interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services; 
    5. provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device; 
    6. access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services; 
    7. violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; 
    8. remove or obscure any proprietary notice that appears within the Services;
    9. impersonate any person or entity, including Function Flo personnel, or falsely state or otherwise misrepresent your affiliation with Function Flo, or any other entity or person;
    10. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
    11. take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
    12. use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
  • You will not: upload, post, email, store, transmit, or otherwise make available any content that: 
    1. is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable; 
    2. may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); 
    3. infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party; 
    4. consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation; 
    5. contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; 
    6. contains infringing, libelous, or otherwise unlawful or tortious material; or 
    7. consists of information that you know or have reason to know is false or inaccurate.
  • Function Flo’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Function Flo, and does not create a private right of action for any other party.

6. PURCHASES; PAYMENT TRANSACTIONS; ORDER TERMS AND PROMOTIONS

  1. Function Flo does not currently charge you a fee to make Purchases from Merchants using the Services. We reserve the right to charge fees in the future, and any fees applicable to a Purchase or Payment Transaction you make will be clearly disclosed to you prior to the completion of your Purchase.
  2. Function Flo makes available the Services and, either directly or through a third party service provider, processes Payment Transactions for Purchases on behalf of Merchants as the agent of the Merchants through the payment networks. When you make a Purchase, you authorize Function Flo, as agent for the Merchant, to submit the charge in the amount of the Purchase (including any gratuities, fees and taxes) to your Payment Method as well as any credits in connection with chargebacks, reversals, refunds or adjustments. Function Flo, as the agent of the Merchant, will assist the Merchant in submitting the Payment Transaction to the payment network and processing the Payment Transaction. Upon Function Flo receiving the proceeds of the transaction, your payment obligation to the Merchant will be deemed completed (except in the case of a later chargeback or reversal).
  3. You must provide a valid Payment Method to pay for your Purchases made through any of the Services. You authorize Function Flo to confirm your Payment Method is in good standing with the issuing financial institution. In order to do so, Function Flo may obtain an authorization to charge your Payment Method for a Payment Transaction. This authorization may reduce your available funds balance by the authorization amount until the Payment Transaction is actually charged to your Payment Method and the proceeds are processed and settled. Please contact your Payment Method issuer if you have questions regarding the status of an authorization or of a charge to your Payment Method. You agree that Function Flo, on behalf of the Merchant, may resubmit a Payment Transaction for processing to a payment network in the event a prior Payment Transaction was declined or returned.
  4. If you choose to store Payment Method information with Function Flo via any of the Services for your convenience and use in future transactions, you agree that Function Flo may receive up-to-date information on your Payment Method information (such as card number or expiration date) through services available from the card networks and may update your Payment Method credentials stored with Function Flo (if you choose to store your Payment Method credentials) from time to time.
  5. We may establish limitations concerning use of the Services, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions you may make within certain time periods. We may decline to process any Payment Transaction without any notice to you. We may delay processing of or hold or cancel processing of any Payment Transaction upon the direction of the Merchant or if we believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates applicable laws and regulations, this TOS, or any other policies.
  6. Payments made through the Services are also subject to the terms of your agreement with your Payment Method issuer. You are solely responsible for any charges or fees that may be imposed by your Payment Method issuer as a result of using the Services.  Each Merchant sets its own cancellation and refund policies. Once a Purchase has been made through the Mobile App, any Digital Ordering feature, or a Point of Sale feature, you will need to contact the Merchant directly to inquire if you can make a change to or cancel the Purchase or whether you may receive a refund.  For questions or customer service regarding a Purchase or the product or service provided by a Merchant, please contact the Merchant directly. Function Flo is not responsible for any Merchant service issues or content errors or inaccuracies related to a Merchant’s website, menu, or other materials.
  7. When you use the Mobile App, Digital Ordering, or other Services, you may be eligible to use codes (“Promotion Codes”) at checkout to receive discounts or other promotional offers on purchases (“Promotions”), subject to any terms and conditions of the specific Promotion Code or Promotion, as displayed on our websites, on the Mobile App, or related print, social media, or digital marketing materials. The promotional value may be issued by Function Flo or by a Merchant. Promotion Codes may not be redeemed for cash and are non-refundable and non-transferrable. Function Flo reserves the right to modify, suspend, terminate, or alter the terms of any Promotion Code or Promotion at any time. Promotion Codes may not be reused in the event of a cancellation and/or refund.  

7. FEEDBACK

If you elect to provide or make available to Function Flo any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Function Flo shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.

8. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES (INCLUDING MERCHANTS)

The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”).  You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that terms and policies are solely between you and the advertiser or other third party. You agree that Function Flo does not endorse and is not responsible or liable for any issues related to Third Party Services, including without limitation liability for any errors or omissions in any Third Party Services or for any loss or damage of any kind incurred as a result of the use of or reliance on any Third Party Services posted, emailed, linked or otherwise transmitted via the Services.   Furthermore, Function Flo does not guarantee the accuracy, integrity or quality of any Third Party Services, regardless of whether such products or services are designated as “certified,” “validated” or the like. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. You should take precautions when downloading files from any platform to protect your computer from viruses and other destructive programs. If you decide to access any Third Party Services, you fully assume the risk of doing so. 

9. INDEMNIFICATION

You shall indemnify and hold Function Flo and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Function Flo Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Function Flo; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this TOS.

10. DISCLAIMER OF WARRANTIES

  1. YOUR USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES)  ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FUNCTION FLO PARTIES AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
  2. FUNCTION FLO PARTIES AND ITS THIRD PARTY PROVIDERS MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE; OR (iv) THE SERVICE, OR PRODUCTS OR SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
  3. FUNCTION FLO RELIES UPON MERCHANTS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. FUNCTION FLO DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
  4. YOU ACKNOWLEDGE THAT NEITHER FUNCTION FLO NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT NEITHER FUNCTION FLO NOR ITS THIRD-PARTY PROVIDERS ARE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING THE FOREGOING, NEITHER FUNCTION FLO NOR ITS THIRD-PARTY PROVIDERS WARRANTS OR GUARANTEES THAT ANY OR ALL SECURITY BREACHES OR ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES.
  5. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED.  ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).

11. LIMITATION OF LIABILITY

  1. FUNCTION FLO PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF FUNCTION FLO PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL FUNCTION FLO PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO FUNCTION FLO FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
  2. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. TCPA/ELECTRONIC COMMUNICATIONS (E-SIGN DISCLOSURE AND CONSENT)

  1. Consent for Electronic Communications.  You agree and consent to receive electronically all communications, agreements, disclosures, notices and documents (collectively “Communications”) that Function Flo provides in connection with your Account and the Services. Function Flo may at times be required to provide you with Communications in written form, which you agree to receive electronically instead of in paper form, including by sending via electronic mail to the email address you provide to us, or by posting notice or communicating with you via the Mobile App or our website. Communications include this TOS and any and all other agreements or policies to which you must agree to in order to use the Services, including updates to those agreements and policies; payment authorizations and transaction receipts or confirmations of customer service matters; and any other communication related to your use of the Services.

It is your responsibility to keep your email address accurate and up to date so that Function Flo can communicate with you. You can update the email address associated with your Account by logging in and accessing the “Profile” section within the Mobile App or any online ordering page.

All Communications sent in electronic format will be considered to be in “writing and are considered received by you upon posting through our website or Mobile App, or sending such Communications to you via electronic email or SMS, regardless of whether you have accessed that Communication.

  1. Consent to Contact Mobile Number.  By voluntarily providing your mobile phone number to Function Flo, you represent you are authorized to provide that number to Function Flo and agree that Function Flo may contact you at that number. If you provide a mobile number, you expressly agree that Function Flo may contact you using automated telephone call, and SMS or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, informational, and operational purposes.  You agree to promptly alert us whenever you stop using a particular telephone number.  Your cellular or mobile telephone provider will charge you according to the type of plan you carry.
  2. Revocation of Consent.  Your consent to receive electronic Communications is valid until and unless you revoke it. You may revoke your consent at any time, however, consent to electronic Communications is a condition of some of our Services, and if you revoke it you will no longer be permitted to use the Services. If you wish to revoke your consent for electronic Communications, please contact [email protected]

13. SUSPENSION AND TERMINATION

  1. Either party may terminate this TOS at any time.
  2. If you violate this TOS, Function Flo may, with or without notice to you, immediately suspend or terminate your access and use of the Services.
  3. Function Flo reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Function Flo shall not be liable to you or any third party for any such modification or discontinuance;
  4. Upon termination of this TOS for any reason: (i) Function Flo, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination.  Further, you agree that that Function Flo shall not be liable to you or any third party for any termination of your account or access to the Services. Termination of your use of any of the Services does not relieve you of the obligation to pay for any Purchases made as well as fees and charges incurred prior to termination and Function Flo will not provide any refunds for amounts previously paid through the Services.

14. GOVERNING LAW

This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.

15. BINDING ARBITRATION AND CLASS ACTION WAIVER

  1. ALL CLAIMS ARISING IN CONNECTION WITH THIS TOS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
  2. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
  3. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
  4. Notwithstanding anything to the contrary, you and Function Flo may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.
  5. If Function Flo implements any material change to this Section 15, such change shall not apply to any Claim for which you provided written notice to Function Flo before the implementation of the change.

16. LEGAL COMPLIANCE

You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where the Services are accessed or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

17. U.S. GOVERNMENT ENTITIES

This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.

18. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Function Flo’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Function Flo’s Agent for Notice of Copyright Claims. Function Flo’s Agent for Notice of Copyright Claims can be reached as follows:

Function Flo Corporation

C/o Agent for Notice of Copyright Claims

1807 Crooked Lane, Austin, Texas 78741

Email: [email protected]

19. CALIFORNIA USERS & RESIDENTS

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

20. GENERAL PROVISIONS

This TOS constitutes the entire agreement between you and Function Flo concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Function Flo with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern.  This TOS may not be amended by you except in a writing executed by you and an authorized representative of Function Flo. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Function Flo. The failure of Function Flo to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Function Flo hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

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