Terms of Service:
Last modified on August, 2012
Your Agreement to these Terms of Service.
Welcome to the FLUSHNET LIVE, Inc. video management and streaming platform consisting of web sites, services, software applications and networks that allows for the authorized streaming and distribution of video content over the internet (the “FLUSHNET LIVE Service”).
The following Terms of Service for the FLUSHNET LIVE Service is a legal contract between you, an individual user of at least 13 years of age or a single entity (“You” or, collectively, “Users”), and FLUSHNET LIVE regarding your use of the FLUSHNET LIVE Service.
FLUSHNET LIVE may offer certain additional services by which you agree to pay fees to FLUSHNET LIVE, a list of such services and terms which are made available on the FLUSHNET LIVE web page. If you register and/or use any such paid fee services, you are also bound by the FLUSHNET LIVE Terms of Sale. The FLUSHNET LIVE Terms of Sale is hereby incorporated by reference.
PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE. BY REGISTERING FOR, ACCESSING, BROWSING, DOWNLOADING FROM OR USING THE FLUSHNET LIVE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE FLUSHNET LIVE SERVICE.
IF YOU ARE USING OR OPENING AN ACCOUNT WITH FLUSHNET LIVE ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A “SUBSCRIBING ORGANIZATION”) THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS; (II) HAVE READ THE FOREGOING TERMS; (III) UNDERSTAND THESE TERMS, AND (IV) AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
The FLUSHNET LIVE Service is not available to persons under the age of 13 or to any users previously suspended or removed from the FLUSHNET LIVE Service by FLUSHNET LIVE. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE FLUSHNET LIVE SERVICE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE FLUSHNET LIVE SERVICE.
2. Incorporation by Reference.
3. Individual Features and Services.
When using the FLUSHNET LIVE Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into these Terms.
4. Modification of these Terms.
FLUSHNET LIVE reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time. Please check these Terms and any Guidelines periodically for changes. Your continued use of the FLUSHNET LIVE Service after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the FLUSHNET LIVE Service. We will always make a reasonable effort to notify you if we do change these Terms.
5. Digital Millennium Copyright Act.
Please note that since we respect artist and content owner rights, it is FLUSHNET LIVE’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to FLUSHNET LIVE’s DMCA Notification Guidelines. Please note that FLUSHNET LIVE will promptly terminate without notice any User’s access to the FLUSHNET LIVE Service if that User is determined by FLUSHNET LIVE to be a “repeat infringer.” A repeat infringer is a User who has been notified by FLUSHNET LIVE of infringing activity violations more than twice and/or who has had their Lifestreamer Content or any other user-submitted content removed from the FLUSHNET LIVE Service more than twice. In addition, FLUSHNET LIVE accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. FLUSHNET LIVE Service License Grant.
6.1 License Grant to Upload or Stream.
FLUSHNET LIVE allows certain users (“Lifestreamers”) to distribute streaming live and pre-recorded videos of their day-to-day activities (“Lifestreams”).
If you sign up for an account as a Lifestreamer, subject to your compliance with the terms and conditions set out in this Terms of Service, FLUSHNET LIVE hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the FLUSHNET LIVE Service for the uploading and distributing of authorized digital content, including videos (“Lifestreamer Content”).
Content is uploaded at your own risk. Notwithstanding any obligations hereunder of FLUSHNET LIVE to protect Lifestreamer Content, FLUSHNET LIVE cannot guarantee that there will be no unauthorized copying or distribution of Lifestreamer Content nor will FLUSHNET LIVE be liable for any copying or usage of the Lifestreamer Content not authorized by FLUSHNET LIVE.
6.3 License Grant to View by Streaming.
If you sign up for an Account, subject to your compliance with this Terms of Service, FLUSHNET LIVE hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to view by streaming Lifestreamer Content solely through the FLUSHNET LIVE Service subject to the license under which such Lifestreamer Content is distributed.
6.4 Reservation of Rights.
FLUSHNET LIVE reserves all rights not expressly granted in this Terms of Service.
6.5 Prevention of Unauthorized Use.
FLUSHNET LIVE reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the FLUSHNET LIVE Service, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
7. Lifestreamer Content License Grant; Representations and Warranties.
7.1 License Grant to FLUSHNET LIVE.
Unless otherwise agreed to in a written agreement between you and FLUSHNET LIVE that was signed by an authorized representative of FLUSHNET LIVE:
a) By distributing or disseminating Lifestreamer Content through the FLUSHNET LIVE Service, you hereby grant to FLUSHNET LIVE a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, compress or convert for streaming, and otherwise exploit your Lifestreamer Content, in any media formats and through any media channels, in order to publish and promote such Lifestreamer Content in connection with services offered or to be offered by FLUSHNET LIVE. Such license will apply to any form, media, or technology now known or hereafter developed.
b) Subject to section 7.2, below, the foregoing license granted by you terminates as to a specific piece of Lifestreamer Content once you remove or delete such Lifestreamer Content from the FLUSHNET LIVE Service.
7.2 License Grant to other FLUSHNET LIVE users.
By distributing or disseminating Lifestreamer Content through the FLUSHNET LIVE Service, you hereby grant to each User of the FLUSHNET LIVE Service that is authorized to access your Lifestreamer Content a perpetual, personal, non-commercial, non-transferable, non-exclusive license to access and view your Lifestreamer Content.
7.3 Lifestreamer Content Representations and Warranties.
You are solely responsible for your Lifestreamer Content and the consequences of posting or publishing them. By uploading and publishing your Lifestreamer Content, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize FLUSHNET LIVE and FLUSHNET LIVE’s Users to use your Lifestreamer Content as necessary to exercise the licenses granted by you in this section and in the manner contemplated by FLUSHNET LIVE and this Terms of Service; (2) your Lifestreamer Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (b) slander, defame, or libel any other person; (3) your Lifestreamer Content does not contain any viruses, adware, spyware, worms, or other malicious code. Violators of these third-party rights may be subject to criminal and civil liability. FLUSHNET LIVE reserves all rights and remedies against any Users who violate this Terms of Service.
7.4 Lifestreamer Content Disclaimer.
You understand that when using the FLUSHNET LIVE Service you will be exposed to Lifestreamer Content from a variety of sources, and that FLUSHNET LIVE is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Lifestreamer Content. You further understand and acknowledge that you may be exposed to Lifestreamer Content that are inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against FLUSHNET LIVE with respect thereto. FLUSHNET LIVE does not endorse any Lifestreamer Content or any opinion, recommendation or advice expressed therein, and FLUSHNET LIVE expressly disclaims any and all liability in connection with Lifestreamer Content. If notified by a User or a content owner of Lifestreamer Content that allegedly does not conform to this Terms of Service, FLUSHNET LIVE may investigate the allegation and determine in its sole discretion whether to remove the Lifestreamer Content, which it reserves the right to do at any time and without notice. For clarity, FLUSHNET LIVE does not permit copyright infringing activities on the FLUSHNET LIVE Service.
8. Prohibited Conduct.
BY USING THE FLUSHNET LIVE SERVICE YOU AGREE NOT TO:
8.1 use the FLUSHNET LIVE Service for any purposes other than to disseminate or receive original or appropriately licensed content and/or to access the FLUSHNET LIVE Service as such services are offered by FLUSHNET LIVE;
8.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in section 12, below);
8.3 post, upload, or distribute any defamatory, libelous, or inaccurate Lifestreamer Content or other content;
8.4 post, upload, or distribute any Lifestreamer Content or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, invasive of another’s privacy, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
8.5 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the FLUSHNET LIVE Service accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the FLUSHNET LIVE Service, or perform any other similar fraudulent activity;
8.6 delete the copyright or other proprietary rights on the FLUSHNET LIVE Service or Lifestreamer Content;
8.7 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the FLUSHNET LIVE Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
8.8 use the FLUSHNET LIVE Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
8.9 defame, harass, abuse, threaten or defraud Users of the FLUSHNET LIVE Service, or collect, or attempt to collect, personal information about Users or third parties without their consent;
8.10 use the FLUSHNET LIVE Service if you are under the age of thirteen (13) years old;
8.11 remove, circumvent, disable, damage or otherwise interfere with security-related features of the FLUSHNET LIVE Service or Lifestreamer Content, features that prevent or restrict use or copying of any content accessible through the FLUSHNET LIVE Service, or features that enforce limitations on the use of the FLUSHNET LIVE Service or Lifestreamer Content;
8.12 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the FLUSHNET LIVE Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.13 modify, adapt, translate or create derivative works based upon the FLUSHNET LIVE Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
8.14 intentionally interfere with or damage operation of the FLUSHNET LIVE Service or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
8.15 relay email from a third party’s mail servers without the permission of that third party;
8.16 use any robot, spider, scraper, or other automated means to access the FLUSHNET LIVE Service for any purpose or bypass any measures FLUSHNET LIVE may use to prevent or restrict access to the FLUSHNET LIVE Service;
8.17 manipulate identifiers in order to disguise the origin of any Lifestreamer Content transmitted through the Service; or
8.18 interfere with or disrupt the FLUSHNET LIVE Service or servers or networks connected to the FLUSHNET LIVE Service, or disobey any requirements, procedures, policies or regulations of networks connected to the FLUSHNET LIVE Service.
When you use the FLUSHNET LIVE Service to upload and/or download or purchase content or any products, services, or information from FLUSHNET LIVE, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to FLUSHNET LIVE on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you agree to immediately notify FLUSHNET LIVE. You may be liable for the losses incurred by FLUSHNET LIVE or others due to any unauthorized use of your FLUSHNET LIVE Service account.
10. Third-Party Sites, Products and Services; Links.
The FLUSHNET LIVE Service may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). FLUSHNET LIVE does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the FLUSHNET LIVE Service are solely between you and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
11. Termination; Terms of Service Violations.
11.1 FLUSHNET LIVE.
You agree that FLUSHNET LIVE, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) you may have with FLUSHNET LIVE or your use of the FLUSHNET LIVE Service and remove and discard all or any part of your account, User profile, and any Lifestreamer Content, at any time. FLUSHNET LIVE may also in its sole discretion and at any time discontinue providing access to the FLUSHNET LIVE Service, or any part thereof, with or without notice. You agree that any termination of your access to the FLUSHNET LIVE Service or any account you may have or portion thereof may be effected without prior notice, and you agree that FLUSHNET LIVE will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies FLUSHNET LIVE may have at law or in equity. As discussed herein, FLUSHNET LIVE does not permit copyright infringing activities on the FLUSHNET LIVE Service, and will terminate access to the FLUSHNET LIVE Service, and remove all Lifestreamer Content or other content submitted by any Users who are found to be repeat infringers.
Your only remedy with respect to any dissatisfaction with (i) the FLUSHNET LIVE Service, (ii) any term of this Terms of Service, (iii) any policy or practice of FLUSHNET LIVE in operating the FLUSHNET LIVE Service, or (iv) any content or information transmitted through the FLUSHNET LIVE Service, is to terminate this Terms of Service and your account. You may terminate this Terms of Service at any time by discontinuing use of any and all parts of the FLUSHNET LIVE Service.
11.3 Lifestreamer Content.
Subject to section 7.2 above, if you notify FLUSHNET LIVE by submitting email to email@example.com, FLUSHNET LIVE will discontinue prospective hosting and distribution of your Lifestreamer Content.
12. Ownership; Proprietary Rights.
The FLUSHNET LIVE Service is owned and operated by FLUSHNET LIVE. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, services, and all other elements of the FLUSHNET LIVE Service provided by FLUSHNET LIVE (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Lifestreamer Content that are provided and owned by Users, all Materials contained on the FLUSHNET LIVE Service are the property of FLUSHNET LIVE or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to FLUSHNET LIVE or its affiliates and/or third-party licensors. Except as expressly authorized by FLUSHNET LIVE, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. FLUSHNET LIVE reserves all rights not expressly granted in this Terms of Service.
You agree to indemnify, save, and hold FLUSHNET LIVE, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the FLUSHNET LIVE Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. FLUSHNET LIVE reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FLUSHNET LIVE, and you agree to cooperate with FLUSHNET LIVE’s defense of these claims. FLUSHNET LIVE will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
14. Disclaimers; No Warranties.
14.1 No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FLUSHNET LIVE, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FLUSHNET LIVE OR THROUGH THE FLUSHNET LIVE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEGE THAT AS USED IN THIS SECTION 14, THE TERM FLUSHNET LIVE INCLUDES FLUSHNET LIVE’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
14.2 “As is” and “As available” and “With All Faults”.
YOU EXPRESSLY AGREE THAT THE USE OF THE FLUSHNET LIVE SERVICE IS AT YOUR SOLE RISK. THE FLUSHNET LIVE SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT (INCLUDING LIFESTREAMER CONTENT), REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE FLUSHNET LIVE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
14.3 Service Operation and Lifestreamer Content.
FLUSHNET LIVE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE FLUSHNET LIVE SERVICE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
FLUSHNET LIVE, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE FLUSHNET LIVE SERVICE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
14.5 Harm to Your Computer.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE FLUSHNET LIVE PLATFORM OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
14.6 Uploaded Content.
THE SECURITY MEASURES TO PROTECT LIFESTREAMER CONTENT USED BY FLUSHNET LIVE HEREIN ARE USED IN CONJUNCTION WITH THE LIFESTREAMER CONTENT “AS-IS” AND WITH NO ASSURANCES THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
15. Limitation of Liability and Damages.
15.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL FLUSHNET LIVE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS (INCLUDING LIFESTREAMER CONTENT) ON THE FLUSHNET LIVE PLATFORM OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH FLUSHNET LIVE, EVEN IF FLUSHNET LIVE OR AN FLUSHNET LIVE AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 Limitation of Damages.
IN NO EVENT WILL FLUSHNET LIVE OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE FLUSHNET LIVE PLATFORM OR YOUR INTERACTION WITH OTHER FLUSHNET LIVE PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE FLUSHNET LIVE PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
15.3 Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN FLUSHNET LIVE AND RECEIVED THROUGH OR ADVERTISED ON THE FLUSHNET LIVE PLATFORM OR RECEIVED THROUGH ANY REFERENCE SITES.
15.4 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT FLUSHNET LIVE HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FLUSHNET LIVE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FLUSHNET LIVE. FLUSHNET LIVE WOULD NOT BE ABLE TO PROVIDE THE FLUSHNET LIVE PLATFORM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
15.5 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
16. United States Export Controls.
You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under this Terms of Service are contingent on your compliance with this provision.
FLUSHNET LIVE may provide you with notices, including those regarding changes to FLUSHNET LIVE’s terms and conditions, by email, regular mail or postings on the FLUSHNET LIVE Service. Notice will be deemed given twenty-four hours after email is sent, unless FLUSHNET LIVE is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the FLUSHNET LIVE Service. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the FLUSHNET LIVE Service is deemed given 30 days following the initial posting.
The failure of FLUSHNET LIVE to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by FLUSHNET LIVE.
17.3 Governing Law.
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
You agree that any action at law or in equity arising out of or relating to these Terms or FLUSHNET LIVE will be filed only in the state or federal courts in and for Santa Clara County, California, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FLUSHNET LIVE without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 5, 6.4, 6.5, and 7-17.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
17.9 Entire Agreement.
This is the entire agreement between you and FLUSHNET LIVE relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by FLUSHNET LIVE as set forth in section 4 above.
YOU AND FLUSHNET LIVE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE FLUSHNET LIVE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
The services are offered by FLUSHNET LIVE, Inc., located at: see and email: info@FLUSHNET LIVE.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.