This Agreement is an agreement between you and Flume regarding your subscription to the Flume Internet service (the Service) and the use of any equipment, including the Flume WiFi router, provided by us to you for providing the Service (the Equipment). The Service does not include any websites controlled by Flume, including Flumeinternet.com.
By signing up to receive the Service, and in using the Service, you agree to abide by this Agreement. This Agreement also incorporates and includes our Privacy Notice, for software included with the Flume router provided by Homepass and the Plume partner application.
In the future, we may change our prices, the Service, and/or the Customer Agreements. We will notify you of material adverse changes by e-mail to the e-mail address you provide, by posting notice online at https://flumeinternet.com, by a mailing to your billing address, or by a text or phone call to the telephone number provided by you to us. Your continued use of the Service after notice of any change will be considered your acknowledgment and acceptance of the change.
PLEASE BE AWARE THAT THIS AGREEMENT INCLUDES A BINDING ARBITRATION PROVISION, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION.
We will provide you the Service and customer care during the period of time that you are a customer.
The Service provides you access to the Internet. Your subscription to the Service begins on the day we install and activate the Service and continues until the Service is terminated, as described below. We refer to the period of time that you receive Service as the "Service Term."
During the Service Term, you get installation of the Service, the Equipment, including a router or routers for your premises, on-going use of the Service itself, and tech support for your personal use of the Service.
Flume may be providing this Service as part of a market trial. The Service may be changed or cancelled as part of this trial at any time and without notice, including for reasons outside of Flume's control, as explained below.
We will provide the Equipment, including a router, for your use with the Service.
The Service includes your use of the Equipment, which must be used to access the Service and is subject to the Flume Terms and Conditions. The Equipment will be provided to you upon installation of the Service. The Equipment must be maintained and returned in the state in which it was provided to you. You bear the risk of loss, theft, destruction, or damage to the Equipment from any cause, regardless of whether or not the Equipment is covered by our insurance. No loss of or damage to the Equipment or any part of the Equipment relieves you of any of your obligations under this Agreement.
The Equipment must be returned upon termination of this Agreement. If, for any reason, you fail to return the Equipment to us upon the termination of the Service, you agree that Flume may charge your credit card for the cost of the Equipment.
You are responsible for the use of the Service and keeping your account information secure.
When you order the Service, you will create an account. You must be of legal age to order the Service and create an account. When you complete the sign-up process you accept this Agreement on behalf of all persons who use the Service through your account. You are solely responsible for ensuring that all other users of the Service through your account understand and comply with the terms and conditions of this Agreement.
Your account can be accessed through the username and password you provide, and it will contain important contact information where we will send you information about the Service, including usage information, account payment information, and other important notices and communications. You are responsible for creating and maintaining a secure password. You must provide accurate, current, and complete information to Flume when you create your account, and you must keep this information up-to-date at all times.
You are responsible for keeping your account information secure. Do not permit or enable any use of your account or password by any person who is not a member of your household. You are responsible for the use of the Service, whether by a member of your household or an unauthorized third-party.
The Service is for your personal use and that of your guests at the Service location.
You understand that the Service is for personal, residential, and non-commercial purposes only. You agree that only you and your authorized guests at your property at which the Service and/or Equipment will be provided (the Premises) will use the Service. You will not use the Equipment at any time at an address other than the Premises without Flume's prior written consent. You agree not to resell or permit another person to resell the Service in whole or in part.
We will bill you monthly, and you agree to pay in full for the Service.
You agree to pay us in advance in full for each month of Service. You will make the first payment when we install and activate the Service. We will then automatically charge you every following month until the Service is terminated, as described below.
In the event that the Service is initially provided to you on a promotional basis, including at no charge for a period of time agreed upon by you and Flume, then you agree to comply with the payment terms established in the promotional agreement, if any.
You must notify us of any disputed payments within 60 days of the charge appearing on your credit card statement, or such longer period of time as may be required by applicable law. After such date, you waive all disputes and claims for which you have not provided us notice.
Your obligation to pay for the Service continues even if the Service is unavailable or its quality is degraded, except in the case of certain service outages described below. Any late payments that you make will first be applied to offset amounts you owe to us.
If you fail to pay the full amount due for any charges then we, at our sole discretion in accordance with and subject to applicable law, may suspend or disconnect the Service without a reduction in the amounts you owe us. In order to resume the Service, we may require you to pay the past due charges in full together with any fees, charges, and assessments we have imposed, including any applicable reconnection fee.
We reserve the right to change the fee for the Service or to add new fees at our discretion and at any time in accordance with this Agreement.
We may charge you fees, charges, and assessments for late or non-payment.We do not extend credit to our customers. We may bill you fees, charges, and assessments related to late or non-payment for the Service. These fees, charges, and assessments are liquidated damages intended to be a reasonable advance estimate of our costs resulting from your late or non-payment because we cannot know in advance the actual costs that we may incur as a result of your failure to pay.
If we incur collection or other legal costs as a result of non-payment, you agree to pay us for the total past due amount and the costs of collection. These costs include, but are not limited to, any collection agency's fees, reasonable attorneys' fees, and arbitration or court costs upon judgment.
You authorize us to charge the credit or debit card number you provided for your monthly Service.
When you provide a credit or debit card number to us to pay for the Service, you authorize us to charge that credit card or debit card for all amounts payable by you for ongoing charges until you notify us in writing that you are withdrawing this authorization or until you have paid all amounts you owe us under this Agreement. If we do not receive payment from your card issuer or its agents, you agree to pay all amounts due upon demand.
We may charge fees for all debit, bank card, or credit card charge-backs. If you would like to know the current charge-back fees we may charge, please contact us as described below. We reserve the right to change our charge-back fees.
Do not attempt to place an order or make a payment to us with an expired, false, or unauthorized credit or debit card. We reserve the right to terminate your account immediately without notice upon the rejection of any credit or debit card charges, or non-payment by your financial institution.
If we fail to provide the Service to you, unless for reasons out of our control, you can get a refund.
We do our best to provide reliable Service. However, sometimes things happen outside of our control. Unless otherwise required by law, if there is a complete failure of the Service for 24 consecutive hours or more, excluding any interruption that is scheduled or due to a power outage, inclement weather, or any other 'Force Majeure' event, as such term is defined below, you are entitled, upon request, as your sole and exclusive remedy, to a prorated credit of monthly recurring charges for affected Service for the period that such failure continues beyond 24 hours. Unless otherwise specifically provided by law, you must request credit for Service interruptions within 30 days.
We have a team of professional installers who will install the Service in your home.
In order to install the Service, we must have access to your home. You agree to allow us – including our employees, agents, and contractors – to enter your Premises as necessary at a time agreeable to you and us to install, configure, maintain, inspect, repair and replace, and, upon termination, remove the Service and any Equipment.
You warrant that you have the authority to grant us access to the Premises. Flume and its agents will be respectful of your Premises and try our best to not cause any cosmetic or other damages to the property. We will handle repairs to your Premises to the extent that the damages are attributable to our negligently performed work.
You must notify us with any claim for damages to your Premises within 30 days of the occurrence of the damages.
We employ network management techniques to provide the best possible service to all customers.
We maintain a net neutral management of our network. We do not prioritize any content, application, or service. We do not block access to any legal content, application, or service. We do not cap the amount of data you may use. We do not inspect and collect the contents of the data packets that transit through our network. We do not throttle specific content, applications, and services. We do not prohibit you from attaching non-harmful devices to your connection. We may take minor steps to manage our network.
Despite our efforts, we cannot guarantee any particular amount of bandwidth on the Service or that any speed or throughput of your connection will be available at all times. The speed of the Service will vary depending upon a number of factors, including your computer system(s) and associated equipment, Internet traffic, and other factors such as system capacity limitations, governmental actions, events beyond Flume's control, and system failures, modifications, upgrades, and repairs. Accordingly, we cannot guarantee that the Service will meet your requirements or expectations or will be uninterrupted, timely, secure, or error free.
You agree not to use or permit any other person to use the Service, directly or indirectly, for any purpose that is unlawful, tortious, abusive, or otherwise breaches the terms of this Agreement, including, but not limited to:
the transmission of software viruses or other harmful computer code, files or programs, or circumventing, disabling or otherwise interfering with security-related features of the Service or Equipment;
the collection or harvesting of any third party's personally identifiable information without authorization from such individual or the invasion of the privacy or other rights of any third party;
the removal, alteration, or obscuring of any copyright, trademark or other startup messages or proprietary notices from the Equipment or Service;
any activity or use of the Service which violates system or network security or integrity are prohibited and may result in criminal and civil liability;
the unauthorized access to or use of data, systems, or networks, including any attempt to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without express authorization of the owner of the system or network;
any unauthorized monitoring of data or traffic on any network or system without express authorization of the owner or network;
interfering with Internet service to any user, host, or network, including but not limited to mail bombing, flooding, or denial of service attacks;
forging the header of any transmitted information packet, email, or Usenet posting;
modifying or tampering with any hardware, software, or configuration provided by Flume;
reselling or otherwise redistributing the Service;
disrupting, degrading, or otherwise adversely affecting Flume's network, the Equipment, or other equipment owned by Flume or other Flume customers;
transmitting unsolicited bulk or commercial messages, commonly known as 'spam;'
distributing in any way information, software, or other material obtained through the Service or otherwise that is protected by copyright or other proprietary right, without obtaining any required permission of the owner;
hosting public servers of any kind or using static IPv4 IP addresses; and using the Service in a manner that substantially affects our ability to provide Internet service to our other customers.
There are risks involved in using the Internet. While we strive to make our network secure, we recommend you take steps to protect your devices and information.
We take the security of our network very seriously and actively monitor our network and take other steps to ensure it is secure. When you use the Service to access the Internet or any other online network or service, there are certain risks that may enable other Internet users to gain access to or use of your equipment and information.
In addition to our efforts to operate a secure network, you should also take all appropriate security measures when using the Service. You assume sole responsibility for your equipment when you use it in conjunction with the Service, and for providing and configuring any 'firewall' or security measures to prevent damage from viruses, malware, or other similar malicious items. You are solely responsible for the effectiveness of these blocking and filtering technologies. We do not warrant that others will be unable to gain access to your computer(s) and/or data, nor do we warrant that your data or files will be free from computer viruses or other harmful components, even if you utilize blocking and filtering technologies. We have no responsibility and assume no liability for the protections you may employ nor for any damages that may arise from accessing the Internet.
Either of us can terminate the Service at any time.
You may cancel the Service at any time by contacting customer care, through your user account online, or through the Flume Mobile App.
We reserve the right to cancel the Service at any time for any reason not prohibited by law.
If Flume is providing the Service as part of a market trial, the Service may be changed or cancelled at any time and for any reason, including for reasons outside of Flume's control.
Upon termination of the Service, you agree to (1) arrange for Flume (including a Flume employee, agent, or contractor) to collect the Equipment; or (2) to return the Equipment to us in accordance with the instructions below within 15 days of the date that the Service is deactivated.
If you terminate your Service, or we terminate your Service for any reason other than nonpayment of amounts you owe to us under this Agreement, we will reimburse you for the pro rata portion of any previously paid Service fee attributable to any time period after the date the Service was terminated. We will pay you this pro rata reimbursement at the time at which your service is terminated.
If you fail to return or arrange for our collection of the Equipment, then you agree that we may charge your credit or debit card for the cost of the Equipment and, in that event, you are not obligated to return the Equipment to us.
If you participate in a promotion, including by using a promotional code, additional terms apply.
Flume may, in its sole discretion, create and offer promotional codes that may be redeemed for credit or other features or benefits related to the Service (Promo Codes). Promo Codes are subject to the terms of this Agreement and any additional terms and conditions that Flume may establish on a per-Promo Code basis. Promo Codes do not have any cash value and cannot be redeemed for cash or cash equivalent. Promo Codes are not transferable and may not be traded, duplicated, sold, copied, modified, or transferred in any manner, including, without limitation, between accounts, unless expressly permitted by Flume.
Promo Codes cannot be applied retroactively for prior purchases and cannot be combined unless otherwise indicated. Flume may revoke, cancel, or disable a Promo Code and any related credits, features, or benefits at any time for any reason in its sole discretion without liability to you, including without limitation prior to your redemption or use of a Promo Code or any related credits, features, or benefits. Flume further reserves the right to terminate your account and/or withhold or deduct credits or other features or benefits obtained through the use of a Promo Code by you or any other user in the event that we determine or believe that your use or redemption of any Promo Code(s) was in error, fraudulent, illegal, or in violation of this Agreement or any specific terms and conditions applicable to the Promo Code(s).
More information on terms and conditions associated with Flume promotion can be accessed at www.flumeinternet.com.
WE DISCLAIM ALL WARRANTIES.
YOU EXPRESSLY AGREE AND UNDERSTAND THAT YOUR USE OF THE SERVICE AND THE EQUIPMENT IS AT YOUR SOLE RISK. THEY ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT WARRANTIES OR GUARANTIES OF ANY KIND. Flume AND OUR EMPLOYEES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND ACCORDINGLY THIS MAY NOT APPLY TO YOU DEPENDING ON YOUR LOCATION.
There is a limitation to our liability to you under this Agreement.
THIS LIMITATION OF LIABILITY APPLIES TO ANY ACTS, OMISSIONS, AND NEGLIGENCE OF FLUME AND ITS THIRD-PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS, AND EACH OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES.
UNDER NO CIRCUMSTANCES WILL Flume BE LIABLE TO YOU FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY ACTS OR OMISSIONS ASSOCIATED WITH THE SERVICE, INCLUDING ANY ACTS OR OMISSIONS BY THIRD-PARTY SERVICE PROVIDERS, AGENTS, OR SUBCONTRACTORS OF Flume, OR RELATING TO ANY SERVICES FURNISHED, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED IN THIS AGREEMENT FAILS. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES OR ANY BREACH BY US OF ANY OBLIGATION WE MAY HAVE UNDER THIS AGREEMENT OR APPLICABLE LAW, IS YOUR ABILITY TO TERMINATE THE SERVICE OR TO OBTAIN THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE EQUIPMENT PROVIDED BY US. IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU DURING THE PRECEDING 30 DAY PERIOD.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN LIABILITIES, AND ACCORDINGLY THIS MAY NOT APPLY TO YOU DEPENDING ON YOUR LOCATION.
You agree to indemnify Flume.
Except as otherwise expressly set forth in this Agreement, you agree to defend, indemnify, and hold us harmless from claims or damages relating to or arising out of your breach of this Agreement or your and your users' use of the Service or any Equipment, including but not limited to any claims or damages arising out of (1) postings made using the Service, including for defamation, copyright, trademark, or other proprietary right infringement or otherwise; or (2) third-party claims caused by your violation of this Agreement or other Flume policies. You agree that we are not responsible for any third-party claims against us that arise from your use of the Service or the Equipment. Further, you agree to reimburse us for all costs and expenses related to the defense of any such claims.
We may make changes to the Service. We will notify you in advance of any material adverse changes.
- Subject to applicable law and any express exceptions that we agree to in writing when you subscribe to the Service, such as a promotional price for a fixed term, we may, at any time and periodically:
- Institute new or increase or otherwise change existing fees and charges for the Service;Modify, supplement, or replace the terms, policies, practices, and procedures relevant to the Service;
- Make changes affecting equipment or software;
- Institute new or change the existing features, functions, characteristics, and specifications of the Service, including by instituting or changing limits and restrictions that affect Service features and functions, such as changing upstream or downstream speed, limiting usage of bandwidth or other resources, or imposing additional charges if limits are exceeded; and changing the number, kinds, or parameters of included features or services, such as the amount of bandwidth that may be used in a given level of Internet access service;
- Make any other change relating to any Service contemplated or not expressly prohibited by this Agreement or applicable law.
We will give you advance notice of any such changes that materially adversely affect your rights or obligations under this Agreement by e-mail to the e-mail address you provide, by posting notice online at Flumeinternet.com, by a mailing to your billing address, or by a text or phone call to the telephone number provided by you to us.
Your continued use of the Service after the effective date and following notice of any such change will be deemed your acceptance of that change.
We may communicate with you by e-mail or text messaging.
We will provide you with notices consistent with applicable law. We may send any required or desired notice under the Customer Agreements to your physical address of record by hand delivery, U.S. postal service, or overnight courier. Alternatively, we may send notice by e-mail to the e-mail address you provide to us or by text messaging to the phone number you provide to us. We may also provide notice by posting information in a newspaper or on our website. You agree that any one of the foregoing will constitute sufficient notice. You agree to regularly check your mail, e-mail, and all postings on our website and bear the risk of failing to do so. By agreeing to these terms, you agree that we may send you text messages.
We protect our own and others' intellectual property rights.
You acknowledge that use of the Service does not give you any ownership or other rights in any Internet/on-line addresses provided to you, including, but not limited to, Internet Protocol (IP) addresses, e-mail addresses, and Web addresses. We may modify or change these addresses at any time without notice and without compensation to you for these changes. Upon termination of your Service account, we reserve the right to delete or remove permanently any or all addresses associated with your account.
You will not use, or allow others to use, the Service to send or receive, or otherwise use any information which infringes the patents, trademarks, copyrights, trade secrets, or proprietary rights of any other person or entity. This includes, but is not limited to, digitization of music, movies, photographs, or other copyrighted materials or software. You must obtain appropriate authorization from the appropriate persons or entities prior to sending, receiving, or using copyrighted materials. We assume no responsibility, and you assume all risks, regarding the determination of whether any material is in the public domain or may otherwise be used by you in the way that you intend to use it.
Flume is registered under the Digital Millennium Copyright Act of 1998 (DMCA) and ARIN. Under the DMCA, copyright owners have the right to notify us if they believe that one of our customers has infringed the copyright owner's work(s). If we receive a notice from a copyright owner alleging that you have committed copyright infringement, we will notify you of the alleged infringement. We may determine that you are a repeat copyright infringer if we learn that you have engaged in online copyright infringement on more than one occasion. Flume reserves the right in our sole discretion to suspend or terminate the accounts of repeat copyright infringers.
YOU AGREE TO BINDING ARBITRATION AND WAIVER OF JURY TRIAL
PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES RESOLUTION OF DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT.
If you have a Dispute (as defined below) with Flume that cannot be resolved, you or we may elect to arbitrate that Dispute in accordance with the terms of this provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury. Proceeding in arbitration may also result in limited discovery. An arbitration award is subject to limited review by a court.
The term 'Dispute' means any dispute, claim, or controversy between you and Flume regarding any aspect of your relationship with us, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this arbitration provision. 'Dispute' is to be given the broadest possible meaning that will be enforced. As used in this provision, 'Flume', 'we', or 'us' means Flume and its parents, subsidiaries, and affiliated companies and each of their respective officers, directors, employees, and agents.
3. Right to Opt Out.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY Flume IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU AGREE TO THIS AGREEMENT. YOUR WRITTEN NOTIFICATION TO Flume MUST INCLUDE YOUR NAME, ADDRESS, AND Flume ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH Flume THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF SERVICES TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF ANY STATUTE OR OTHER LAW TO THE CONTRARY, YOU MUST CONTACT US WITHIN 1 YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (EXCEPT FOR BILLING DISPUTES WHICH ARE SUBJECT TO ANOTHER SECTION OF THIS AGREEMENT), OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH Flume UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
5. Initiation of Arbitration Proceeding/Selection of Arbitrator.
The party initiating the arbitration proceeding may open a case with the American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. An explanation of the procedures for initiating an arbitration proceeding are available at adr.org or by calling 877-493-4185. The arbitration proceeding shall be administered by the American Arbitration Association (AAA) under the AAA's Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes that are in effect when the arbitration is initiated (we refer to these rules collectively as the 'AAA Rules'). The AAA Rules are available at adr.org or by calling 800-778-7879.
1. Because the Service provided to you concerns interstate commerce, the Federal Arbitration Act (FAA), not state arbitration law, governs the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the Service(s) from Flume may apply to and govern the substance of any Disputes. No state arbitration statute shall apply to the arbitration proceeding.
2. If there is a conflict between this arbitration provision and the rules of the arbitration organization, this arbitration provision shall govern.
3. If the AAA will not enforce this arbitration provision as written, it cannot serve as the arbitration organization to resolve your Dispute with Flume. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this arbitration provision as written.If there is a conflict between this arbitration provision and the rest of this Agreement, this arbitration provision shall govern.A single arbitrator will resolve the Dispute. The arbitrator will honor claims of privilege recognized by applicable law and will take reasonable steps to protect your account information and other confidential or proprietary information. The arbitrator may award on an individual basis any relief that would be available in court, including injunctive or declaratory relief and attorneys' fees.
4. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or required by applicable law. An award granted by the arbitrator may be enforced in any court with appropriate jurisdiction over the parties.
5. If an award granted by the arbitrator exceeds $75,000, either party may appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within 30 days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within 120 days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
Arbitration Hearing and Location.
If the Dispute is for $10,000 or less, you may choose whether to conduct the arbitration solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the Dispute exceeds $10,000, the AAA Rules will determine the right to a hearing. Any in-person hearing will take place at a location convenient to you in the area where you receive the Service from Flume, unless you and Flume agree or the arbitrator orders otherwise under the AAA Rules.
Payment of Arbitration Fees and Expenses.
Payment of all arbitration fees and expenses will be governed by the AAA Rules. After we receive notice that you have initiated an arbitration proceeding, we will promptly reimburse you for payment of your filing fee. Flume will pay all filing, administration, and arbitrator fees and arbitrator expenses for the Dispute, unless the arbitrator determines that the Dispute is frivolous. You are responsible for paying fees and expenses for your attorneys, witnesses, and experts in arbitration, unless applicable law requires otherwise. We will not seek attorneys' fees and expenses in arbitration, unless the arbitrator determines the Dispute is frivolous. If the arbitrator determines that the Dispute is frivolous, you agree to reimburse Flume for previous payments it made that are otherwise your obligation to pay under the AAA Rules and applicable law.
If any clause within this arbitration provision is found to be illegal or unenforceable, that clause will be severed from this arbitration provision, and the remainder of this provision will be given full force and effect. If the class action and class arbitration waiver is found to be illegal or unenforceable, the entire arbitration provision will be unenforceable, and the Dispute will be decided by a court. In the event this entire provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found to be excluded from the scope of this arbitration provision, YOU AND Flume EACH HEREBY AGREE TO WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY TRIAL BY JURY.
This arbitration provision will survive the termination of the Service and your account with Flume.
Exclusions from Arbitration.
YOU AND Flume AGREE THAT ANY CLAIM FILED BY YOU OR BY Flume THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS WILL NOT BE SUBJECT TO ARBITRATION. IN ADDITION, CLAIMS WHERE THE AMOUNT IN DISPUTE IS VALUED AT LESS THAN THE COST OF AAA FEES, DISPUTES ABOUT Flume'S INTELLECTUAL PROPERTY, AND CLAIMS RELATED TO THEFT OF SERVICE WILL NOT BE SUBJECT TO ARBITRATION.
We are not liable for any delay or failure of performance of the Service due to a Force Majeure event.
We will not be liable to you for any delay or failure of performance of the Service or Equipment due to causes beyond our control, including, but not limited to 'acts of God', fire, flood, fiber cable cut, construction related outage from other city vendor, explosion, or other catastrophes; any law, order, regulation, direction, action, or request of the United States government or of any other government, including state and local governments having or claiming jurisdiction over Flume, or of any department, agency, commission, bureau, corporation, or other instrumentality of any one or more of these federal, state, or local governments or of any military authority; preemption of existing service in compliance with national emergencies, acts of terrorism, insurrections, riots, wars, unavailability of rights-of-way, material shortages, strikes, lockouts, or work stoppages. For the purposes of this Agreement, we refer to any of these events as a 'Force Majeure' event or 'Force Majeure'.
This Agreement contains all of the terms and conditions that relate to our relationship. The terms of this Agreement are governed by New York law. You may not assign this Agreement to a third party.
This Agreement and the other Customer Agreements incorporated by reference herein constitute the entire agreement and understanding between you and Flume with respect to the subject matter of this Agreement, and supersede and nullify all prior written or verbal understandings, promises, agreements, or undertakings with respect to the Service. If any term or condition of this Agreement shall be adjudicated or determined as invalid or unenforceable by a court, tribunal, or arbitrator with appropriate jurisdiction over the subject matter, the remainder of the Agreement with respect to such claim shall not be affected and shall remain valid and enforceable to the fullest extent permitted by law. Flume does not waive any provision or right if it fails to insist upon or enforce strict performance of any provision of this Agreement. Neither the course of conduct between you and us, nor trade practice, shall act to modify any provision of this Agreement.
This Agreement will be deemed to be executed and delivered in New York City, NY and will be governed by the laws of the State of New York without giving effect to any conflict of laws provisions.
This Agreement and the Service and Equipment furnished under this Agreement may not be assigned by you. You agree to notify us immediately of any changes of ownership or occupancy of the Premises. We may freely assign our rights and obligations under this Agreement with or without notice to you.
You may contact us by phone, e-mail, or mail.
For any inquiries or notices required in connection with this Agreement, you may contact us as follows:
Flume Internet, Inc.
Attn: Legal Department
315 Madison Ave, Floor 3
New York, NY 10017