Overview. These Terms of Service (the “Terms of Service” or this “Agreement”) govern your access to and use of Flockrush (“Flockrush”, “we”, “us” or “our”) Web sites, services, code, application programming interfaces (“APIs”), software development kits (“SDKs”) and/or software (collectively, the “Services”). Flockrush is sub-brand of Flockrush Inc. and all Flockrush brands, trademarks, logos, characters or service marks are the exclusive property of Flockrush Inc.
These Terms of Service limit Flockrush’ liability and obligations to you, grant Flockrush certain rights and allow Flockrush to change, suspend or terminate your access to and use of the Services. These Terms of Services also provide for certain rights you may grant to others, including visitors to your website and applications. Your access to and use of the Services are expressly conditioned on your compliance with these Terms of Service. Flockrush reserves the right to update and change these Terms of Service from time to time without notice or acceptance by you, so please check this page frequently for updates and changes.
Description of the Services. The Services are comprised of a suite of proprietary tools and applications that are designed to enable businesses to analyze, review and enhance their web and social media presence, and interact with consumers on their websites on a real-time basis. As described herein, the Services include tools that help you create content from pre-existing social media content, images and other works (collectively, “Created Content”) as well as analytics tools that help you measure your social media presence.
Binding Nature. BY ACCESSING OR USING THE SITE AND/OR THE SERVICES YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. YOU ARE ONLY AUTHORIZED TO ACCESS THE SITE OR TO USE THE SERVICES (REGARDLESS OF WHETHER YOUR ACCESS OR USE IS INTENDED) IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Authorization. Use of the Services is void where prohibited by law. By using the Services, you represent and warrant that: (i) all registration information you submit to us is truthful and accurate; (ii) you will maintain the accuracy of such information; (iii) you are 18 years of age or older; and (iv) your use of the Services does not violate any applicable law or regulation. Flockrush reserves the right to refuse registration of, or cancel, any account in its sole discretion, at any time.
Types of Accounts. When you sign up, you are immediately granted a “15 Day Free Trial Account” for the Services. During this trial period, account holders are allowed access all the features available through the Services and are not charged by Flockrush for the use of the features they access. Flockrush will collect credit card information prior to activating your account, but your credit card will not be charged until the end of the 7 day trial period. By accepting these terms and conditions, you agree that your credit card will automatically be charged for access to the service at the then-current subscription price at the end of the trial period. Flockrush is not required to notify you at the end of the 7 day trial period prior to applying the subscription charge to your credit card.
Fees and Payments. If you choose to purchase the services, you may pay via the Flockrush website using a valid credit card only. Other payment terms may be accepted at the discretion of Flockrush in accordance with our pricing policy. All funds are quoted in the currency in which they are displayed or, where no currency is displayed, all amounts are in Canadian dollars. In addition to paying the published price, you are responsible for paying all applicable taxes in connection with the purchase. Flockrush reserves the right to change its pricing policy or the method or manner in which it charges for the Services at any time at its sole discretion without further notice.
Auto-Renewal/Recurring Billing. Accounts are billed on a monthly recurring basis and charges will automatically be applied at the beginning of each successive monthly period until such time as the subscriber cancels the Account according to the then-current Account cancellation policy. By entering into this Agreement, you acknowledge that your Account will have recurring payment requirements and you accept responsibility for all recurring charges prior to cancellation.
Credentials. Your account will be accessed through a user ID and password that you will create (your “Credentials”). Your Credentials are solely for your use. You are responsible for maintaining the confidentiality of your Credentials and you are fully and solely responsible for all activities that occur under your Credentials, whether authorized by you or not. It is your responsibility to take adequate precautions with your Credentials and to immediately notify Flockrush of any unauthorized use of your Credentials.
Term. These Terms of Service, and any posted revision to these Terms of Service shall remain in full force and effect while you use the Services. Notwithstanding the foregoing, certain provisions of these Terms of Service survive termination or expiration of your Account. Please see “Survival” below for more information.
Content. The Services include functionality that permits users to post text, images, audiovisual media and other forms of content and intellectual property, including the data, ideas, inventions, designs, patterns and processes in such material (collectively, “Content”) to the Services, which can be used as posted or incorporated into Created Content (as defined below). With the exception of Feedback (as defined below), and subject to the grant of rights to Flockrush herein, as between you and Flockrush, any content that you post on or through the Services belongs to you. “Content” does not include non-identifiable aggregate data compiled by Flockrush for purposes of improving, maintaining, and/or optimizing the Services.
Please note that certain Content that you wish to post may be protected by copyright, even if not marked with the © symbol. If you are not the creator of the Content you post or otherwise use in connection with the Services, then you must get permission from the creator of that Content or the copyright holder to use the Content. For example: professionally-taken photographs should not be used in or on the Services or in any Created Content unless you have received permission from the photographer to do so; professionally-produced video clips, such as clips of TV shows or movies, should not be used on the Services or in any Created Content unless you have received a license to do so from the producer or owner of the copyright; musical Content that is not an original creation by you is also protectable under copyright laws. Copying and distributing music without purchasing or obtaining the rights to the music may be in breach of various laws. Prior to uploading your own musical Content, you must be sure that you have the permission to use such musical Content in connection with the Services.
Furthermore, if you want to publish Content that includes images of someone other than yourself, you must get permission from the individuals portrayed in that Content before using it in connection with the Services.
Grant of Rights to Content. Even though, as between you and Flockrush, you own all Content you post to the Services, you grant Flockrush an irrevocable, nonexclusive, worldwide, royalty-free, sub-licensable and transferable right and license to use, reproduce, modify, create derivative works of, distribute, publicly perform and publicly display your Content on and through the Services and on and through other services as Flockrush may elect in its discretion, in any media now existing or hereafter created.
In addition, you hereby grant Flockrush an irrevocable, exclusive, worldwide, royalty-free, sub-licensable and transferable right and license to use, reproduce, modify, create derivative works of, distribute, publicly perform and publicly display your Created Content on and through the Services and on and through other services as Flockrush may elect in its discretion, in any media now existing or hereafter created.
This means that we have the right to use and distribute your Content and Created Content to other websites and media, serve advertisements in connection with such distribution or otherwise monetize your Content or Created Content and retain all revenues resulting therefrom, and you agree that Flockrush may do any or all of the foregoing.
If you post Content or Created Content on or through the Services, you represent and warrant to Flockrush that: you understand and agree that, as between you and Flockrush, you are responsible for all Content posted to the Services and/or any Created Content resulting therefrom; you have the right to post that Content and/or Created Content and to grant to Flockrush all rights granted herein and Flockrush’ use (or any other party’s use as permitted herein) of the Content and/or Created Content will not violate or infringe the rights of any third party; the Content and/or Created Content is your own original work, or you own or have acquired, all necessary rights to post and disclose the Content and/or Created Content; the Content and/or Created Content is true, accurate and complete; the Content and/or Created Content is not unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or impersonate another person; the Content and/or Created Content does not victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; and your disclosure of the Content and/or Created Content does not violate a confidential relationship with any third party, establish a confidential relationship with Flockrush or any of its affiliates or suppliers or obligate Flockrush or any of its affiliates or suppliers to treat your Content and/or Created Content as secret or confidential. Moral Rights. If it is determined that you retain moral rights (including rights of attribution or integrity) in the Content and/or Created Content, you hereby declare that: (a) you do not require that any personally identifying information be used in connection with the Content and/or Created Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the Content and/or Created Content by Flockrush or its licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the Content and/or Created Content; and (d) you forever release Flockrush, and its licensees, successors and assigns, from any claims that you could otherwise assert against Flockrush by virtue of any such moral rights.
No Obligation to Use Content or Created Content. You acknowledge that: (i) neither Flockrush nor any of its suppliers has any obligation, either express or implied, to make any use of your Content and/or Created Content. However, if Flockrush and/or any of its suppliers do make use of your Content and/or Created Content, whether such use is intentional or inadvertent, no compensation will be due to you or anyone else for the use of your Content and/or Created Content or the use of any data, ideas, inventions, designs, patterns and/or processes similar to, related to or derived from your Content and/or Created Content; and (ii) Flockrush does not have any obligation, but may elect, to monitor the Content and/or Created Content that is posted to the Services, for any purpose.
Your Responsibility for Your Content and Created Content. Notwithstanding anything to the contrary herein, you are responsible for all Content and/or Created Content you create, make available or post to the Services, and neither Flockrush nor any of its affiliates or suppliers assumes any responsibility therefor. You may expose yourself to liability if, for example and without limitation, your Content and/or Created Content contains material that is: (i) false, intentionally misleading, or defamatory; (ii) violates any third-party right; (iii) contains material that is unlawful, including illegal hate speech or pornography; (iv) exploits or otherwise harms minors; or (v) violates or advocates the violation of any law or regulation. Accordingly, you agree that any and all Content and/or Created Content shall comply with these Terms of Service and any review guidelines that may be posted by Flockrush from time to time. In addition, you agree, without limitation, not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following (“Objectionable Content”):
Content and/or Created Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; Content and/or Created Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, provincial national or international law, including, without limitation, securities regulations; Content and/or Created Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; Content and/or Created Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; Unsolicited promotions, political campaigning, advertising, contests, raffles, or solicitations;
Private information of any third party, including, without limitation, surname (family name) addresses, phone numbers, email addresses, Social Insurance/Social Security/other government identification numbers and credit card numbers; Viruses, corrupted data or other harmful, disruptive or destructive files; or Content and/or Created Content that links to content that, in the sole judgment of Flockrush: (a) violates the previous subsections herein; (b) is objectionable; (c) which restricts or inhibits any other person from using or enjoying the Website; or (d) which may expose Flockrush, its suppliers and each of their affiliates, or its users to any harm or liability of any type.
Preservation of Content and Created Content. Flockrush may preserve your Content and/or Created Content and may also disclose such Content and/or Created Content, with or without notice to you, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Service; (c) respond to claims that your Content and/or Created Content violates the rights of any third party; or (d) protect the rights, property, or personal safety of Flockrush, its users and the public. Non-Confidential Nature of Content and Created Content. You understand that posting your Content and/or Created Content on or through the Services is entirely voluntary and will expose your Content and/or Created Content to public display in a non-confidential manner. You understand that Flockrush and its suppliers may view your Content and/or Created Content and may develop or have developed Content which is identical or similar to yours, may already know of such Content from other sources or may have taken or will take some other action with respect to such Content.
Other Users Content. Content and/or Created posted by another person or company on or through the Services belongs to the person who posts such Content and/or Created Content. Except as expressly permitted in these Terms of Service, you do not have the right to use, reproduce, create derivative works of, distribute, publicly perform or publicly display any Content and/or Created Content that does not belong to you, other than viewing of the Content and/or Created Content on or through the Services as Flockrush may make available.
Ownership of the Services. All right, title, and interest in and to the Services (including, without limitation, all computer code, graphics, user interfaces and audiovisual content used to provide the Services) are and will remain the exclusive property of Flockrush and/or its suppliers and licensors, including all intellectual property rights therein, even if Flockrush incorporates any of your Feedback (as defined below) into subsequent versions. The Services are protected by copyright, trademark, and other laws of Canada, the United States and foreign countries. Flockrush reserves all rights to the Services that are not expressly granted herein. Except as expressly permitted in these Terms of Service, you may not reproduce, modify, reverse engineer or prespare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Services. You may not copy or modify the HTML or other code used to generate web pages on the Services.
License of Services. Flockrush grants to you, commencing on the effective date of your subscription to the Services (the “Effective Date”) and continuing thereafter for the term of your subscription (unless terminated earlier pursuant to these Terms of Service), a revocable, non-exclusive, non-transferable (except as permitted below), world-wide, limited license to make use of the then-current versions of the Services to which you have subscribed. The Services are licensed hereby, not sold.
Feedback. All feedback, comments, and suggestions for improvements (the “Feedback”) that you provide to Flockrush, in any form, will be the sole and exclusive property of Flockrush. You hereby irrevocably transfer and assign to Flockrush and agree to irrevocably assign and transfer to Flockrush all of your right, title, and interest in and to all of your Feedback, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the “Intellectual Property Rights”) therein. At Flockrush’ request and expense, you will execute documents and take such further acts as Flockrush may reasonably request to assist Flockrush in acquiring, perfecting and maintaining its Intellectual Property Rights and other legal protections for your Feedback. You will not earn or acquire any rights or licenses in the Services or in any Intellectual Property Rights on account of these Terms of Service or your performance under these Terms of Service.
Hosting. The Services are hosted in a datacenter in US and, as a result, information (including, potentially, personally-identifiable information) may be transferred between or reside or be hosted in countries other than the country of your domicile. Notwithstanding the foregoing, you acknowledge and agree that, to the fullest extent permitted by applicable law, Flockrush’ collection, use, storage and sharing of your information and Content and/or Created Content is exclusively subject to the laws of US and Canada, not of the jurisdiction in which you are located.
Rejection of Content. Flockrush has the right, but not the obligation, to remove or block any Content and/or Created Content (including Objectionable Content) from the Services that it determines in its sole discretion to be in violation of these Terms of Service or that is detrimental to the quality or intended spirit of the Services, as determined by Flockrush in its sole discretion. Flockrush also has the right, but not the obligation, to limit or revoke the use privileges of the Account of anyone who posts such Content and/or Created Content or engages in such behavior.
Prohibited Activities. In addition to the prohibition on posting, publishing or transmitting any Objectionable Content as set forth in Section 3, above, you agree not to do any of the following while using, or otherwise in connection, with the Services: access, tamper with, or use non-public areas of the Services, Flockrush’ computer systems, or the technical delivery systems of Flockrush’ suppliers; attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures used in connection with the Services; attempt to access or search the Services or any Content and/or Created Content with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by Flockrush or other generally available third-party web browsers (such as Microsoft Internet Explorer, Google Chrome or Mozilla Firefox), including but not limited to browser automation tools; send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services; forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information; attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services; interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; or plant malware on Flockrush’ computer system, those systems of Flockrush’ providers, or otherwise use the Services to attempt to distribute malware; impersonate or misrepresent your affiliation with any person or entity; use the Services for any illegal, criminal or tortious activity; or use the Services to harass, abuse, or harm another person or entity, or attempting to do the same.
Copyright Infringement Notices. If you believe that any material available on or through the Services violates your copyright, you may send Flockrush a copyright infringement notice. Any such notice must be in writing and must include substantially all of the following:
a physical or electronic signature of a person authorized to act on behalf of the owner of the right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Flockrush to locate the material. Flockrush requests that complete URLs for each instance of the allegedly infringing material be provided;
information reasonably sufficient to permit Flockrush to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted;
a statement 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
a statement that the information in the copyright infringement notice 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.
Copyright Agent. Your written copyright infringement notice must be sent to Flockrush’ designated copyright agent via mail or email. Please be aware that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Attention: Copyright Agent
8 King Street East, Suite 1400
By email: [email protected]
The Copyright Agent should only be contacted if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on or through the Services. The Copyright Agent will not respond to any other inquiries.
Termination of Your Account. Flockrush, in its sole discretion, may without liability or penalty terminate your password and/or Account and/or any Paid Features, remove your access to the Services and/or discard any Content and/or Created Content within the Services for any reason, including without limitation, lack of use, or if Flockrush believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. In such event, but subject to any survival provisions herein, any contracts, verbal or written or assumed, in conjunction with your Account and all its parts, at Flockrush’ discretion, will be terminated as well. Any termination of your access to the Services under any provision of these Terms of Service may be effected without prior notice.
Termination: Paid Accounts. If you elect to terminate your Account at any time, you will have access to the functionality made available to you with your Account until the expiry of the period for which you have paid. In no event will you be entitled to a refund if you terminate any Account.
Discontinuance of Services. Flockrush, in its sole discretion and at any time, may discontinue providing the Services, or any part thereof, with or without notice and without liability or penalty. In such circumstances, Flockrush may immediately deactivate or delete your Account, as applicable, and all related information and Content and/or Created Content and bar any further access to such information, Content or to the Services. Flockrush will not be liable to you or any third party for any termination of your access to the Services.
Survival. If Flockrush terminates your Account or removes your access to the Services, all rights and obligations under these Terms of Service shall cease, save for: Grant of Rights, Moral Rights, Non-Endorsement & Release, Preservation of Content, Survival, Indemnification, Limitation of Liability, Governing Law, Dispute Resolution, Waiver and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination.
Deletion of Content. After cancellation or termination of your Account for any reason, you will no longer have access to your Account and all information and Content in your Account or that you have stored on the Services may be, but is not required to be, deleted by Flockrush. Flockrush will have no liability for information or Content that is deleted due to the cancellation or termination of your account for any reason.
If you are a business or enterprise utilizing the Services, the following terms also apply to you.
User Personal Information. If end-users provide you with user names, passwords, or other login information or personal information, you must make the end-users aware that the information will be available to your application, and you must provide legally adequate privacy notice and protection for those users. If your application stores personal or sensitive information provided by users, it must do so securely.
Responsibility for End-Users. As between you and Flockrush, you are solely responsible for the acts and omissions of your end-users and you are solely responsible for managing the interaction of each end-user with other end-users and with other third parties.
Obligations Regarding User Content. As between you and Flockrush, you will retain all right, title and interest in and to all Content transmitted by you or your end-users to Flockrush in connection with the Services (collectively, the “End-User Content”), provided, however, that you hereby grant to Flockrush an irrevocable, nonexclusive, worldwide, royalty-free, sub-licensable and transferable right and license to use, reproduce, create derivative works of, distribute, publicly perform and publicly display End-User Content on and through the Services and on and through services affiliated with Flockrush, in any media now existing or hereafter created. Your ownership of End-User Content does not include non-identifiable aggregate data compiled by Flockrush for purposes of improving, maintaining, and/or optimizing the Service, which for all purposes shall be considered part of the Services and thereby owned by Flockrush. You hereby irrevocably release and forever discharge Flockrush and its affiliates and agents from any and all actions, causes of actions, claims, damages, liabilities and demands with respect to the End-User.
Content. Notwithstanding the foregoing, you will not store or transmit, nor allow any end-user to store or transmit, any End-User Content on or through the Services that violate these Terms of Service, or that is, is alleged to be or, in Flockrush’ sole discretion, may be in violation of any law, rule or regulation or of any third party’s rights, or otherwise exposes Flockrush to any liability.
Access to, and Retention of Information. To comply with applicable laws and lawful governmental requests, to protect Flockrush’ systems and customers, or to ensure the integrity and operation of Flockrush’ business and systems, Flockrush may access, store and/or disclose any information stored or transmitted on or through the Services which Flockrush considers necessary or appropriate, including, without limitation, user information, IP address and traffic information, usage history, and Created Content.
Content and End-User Content. Flockrush also reserves the right to report any activity that it suspects violates any law, rule or regulation to appropriate law enforcement officials, regulators or other appropriate third parties.
Advertising. Certain of the Services may include functionality that permits advertisements to be delivered and displayed on your website and/or other social media platforms. Such advertisements may be served from third party providers, over which Flockrush does not exercise control. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT Flockrush DOES NOT HAVE ANY OBLIGATION TO RESTRICT OR CENSOR ADVERTISEMENTS THAT MAY BE DISPLAYED ON YOUR WEBSITE AND/OR SOCIAL MEDIA PLATFORMS THROUGH THE SERVICES AND YOU HEREBY RELEASE, AND WAIVE ANY CLAIM YOU MAY HAVE AGAINST, Flockrush WITH RESPECT THERETO.
Non-Endorsement and Release. You acknowledge and agree that Flockrush and suppliers provide a suite of tools that enable other business to create and share Content, Created Content and other social media campaigns; as a result, Flockrush and its suppliers are not responsible for the accuracy, completeness, appropriateness, legality or applicability of any Content and/or Created Content or anything said, depicted, written or done by users of the Services (including, without limitation, businesses using the Services) through the Services, including without limitation, any information that you may obtain by using the Services. Flockrush does not endorse anything contained in the Content and/or Created Content or any information, opinion, recommendation or advice expressed therein and you understand that you must evaluate and bear all risks associated with the use of any Content and/or Created Content, including any reliance on the integrity, and accuracy of such Content. ACCORDINGLY, AS A CONDITION OF YOUR USE OF THE SERVICES, YOU HEREBY WAIVE, AND IRREVOCABLY RELEASE AND FOREVER DISCHARGE Flockrush AND ITS SUPPLIERS AND THEIR RESPECTIVE AFFILIATES AND SUBSIDIARIES (TOGETHER, THE “RELEASED PARTIES”) FROM ANY AND ALL ACTIONS, CAUSES OF ACTIONS, CLAIMS, DAMAGES, LIABILITIES AND DEMANDS, WHETHER ABSOLUTE OR CONTINGENT AND OF ANY NATURE WHATSOEVER, WHICH YOU NOW HAVE OR HEREAFTER CAN, SHALL OR MAY HAVE AGAINST THE RELEASED PARTIES OR THEIR RESPECTING SUCCESSORS AND ASSIGNS WITH RESPECT TO: (I) THE CONTENT AND/OR THE CREATED CONTENT, INCLUDING WITHOUT LIMITATION IN RESPECT OF HOW THE RELEASED PARTIES, DIRECTLY OR INDIRECTLY, USE THE CONTENT AND/OR THE CREATED CONTENT; AND (II) THE ACTIONS OR INACTIONS OF OTHER USERS OF THE SERVICES.
11. GENERAL TERMS
Effect. These Terms of Service will remain in full force and effect while you use the Services.
Assignment. You may not assign your subscription to the Services, and such any assignment by you will be null and void; provided, however, that you may assign your account to the Services to a successor in interest in connection with the sale of your business as a going concern or in connection with the sale of all, or substantially all, of your assets.
Indemnification. You agree to indemnify and hold Flockrush, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (i) your use of the Services, (ii) a claim that you, or any third party using your Credentials, infringed any intellectual property or other right of any person or organization using the Services, (iii) the violation of these Terms of Service by you, or any third party using your Credentials; or (iv) your negligence or willful misconduct.
THE SERVICES ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, Flockrush AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE SERVICES WILL INCREASE SALES, GOODWILL OR ACHIEVE A SPECIFIC RESULT. FURTHER, Flockrush AND ITS AFFILIATES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER INFORMATION CONTAINED IN THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Flockrush DOES NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, WILL BE SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Flockrush OR THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. Limitation of Liability.
NEITHER FLOCKRUSH NOR ITS AFFILIATES WILL BE LIABLE, UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND FLOCKRUSH. FLOCKRUSH’ SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, FLOCKRUSH’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, WILL BE THE GREATER OF: (i) ONE HUNDRED DOLLARS ($100.00); OR (ii) THE AMOUNT YOU PAID TO Flockrush IN CONNECTION WITH ANY PAID ACCOUNT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OR DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Entire Agreement. These Terms of Service (including any additional terms, conditions, policies and agreements incorporated herein) are the entire agreement between Flockrush and you regarding the Services.
Governing Law/Jurisdiction. Any dispute arising from or related to these Terms of Service will be governed by the laws of the Province of Ontario without regard to conflict of law principles. Subject to the Dispute Resolution provision, below, the exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the Courts of the Province of Ontario located in Toronto, Ontario, Canada and each of the parties hereto irrevocably waives any objection to jurisdiction and venue in such courts.
Dispute Resolution. Any dispute regarding these Terms of Service, including the validity, existence, binding effect, interpretation, performance, breach or termination, and including tort claims, shall be referred to and finally determined, to the exclusion of the courts, by a single arbitrator. The arbitration shall take place in Toronto, Ontario, in English, and in accordance with the National Arbitration Rules of the National Arbitration Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Ontario Arbitration Act.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY Flockrush IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU SET UP AN ACCOUNT, TO THE FOLLOW ADDRESS:
8 King Street East, Suite 1400
ATTENTION: LEGAL DEPARTMENT. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, MAILING ADDRESS AND EMAIL ADDRESS, AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH Flockrush, OR YOUR USE OF THE SERVICES.
UNLESS OTHERWISE REQUIRED BY LAW, YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.
Should you have a dispute with one or more users or end-users, or an outside party, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. We encourage users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
Waiver of Class Actions. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO ANY ACTION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS OF SERVICE MUST BE INDIVIDUALLY NAMED. YOU HEREBY WAIVE ANY RIGHT YOU MAY HAVE FOR ANY DISPUTE PERTAINING TO THE SERVICES OR THESE TERMS OF SERVICE TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS, OR ON BASES INVOLVING DISPUTES BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC.
Waiver. The failure of Flockrush to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect and be enforceable.