These Terms of Use govern the relationship between you and rosterdotcom, LLC (“Flayk,” “we,” “us” and “our”), the owner and operator of the Flayk mobile application, regarding your use of the Flayk app. By accepting electronically (for example, by clicking “I Agree”), installing, accessing or using any of the Flayk Services (as defined below), you agree to be bound by the terms and conditions of these Terms of Use, the Flayk Privacy Policy, and our End User License Addendum, as they may be amended from time to time in the future (see “Modifications” below). Your access to and use of the Flayk app, the Site (as defined below), the Software (as defined below) and the Services are conditioned on your acceptance of, and compliance with, these Terms of Use. If you do not agree to these Terms of Use, then you may not use the Flayk app, Site, Software, or Services.
The following describes Flayk’s requirements for using our Software, Services, websites, and mobile Services:
- You agree to provide accurate information.
- You agree to use our Services in an ethical, responsible, and lawful manner.
- You are responsible for your password and user ID, and you need to keep track of who is using your account.
- Flayk respects intellectual property rights and requires our users to do the same.
IMPORTANT – PLEASE READ THE COMPLETE AGREEMENT THAT FOLLOWS:
- Acceptance
Welcome to Flayk. These Terms of Use govern your family’s use of the Flayk mobile app, mobile services, www.flayk.com, other properties in the flayk.com domain (such as my.flayk.com, family.flayk.com, and all others) and co-branded websites (collectively, the “Site”), any Flayk software, including co-branded versions, downloaded from this Site or obtained elsewhere (the “Software”), and the services made available on the Site or through use of the Software, and the use of the Flayk mobile app and Flayk mobile services (the “Services”). The Site, Software, and Services display advertisements.
You may not use the Flayk app, Site, Software or Services and you cannot accept these Terms of Use if you are not at least 18 years of age and, in any event, of a legal age to form a binding contract with Flayk. Use of the Flayk app, Site, Software and Services is limited to users who are 18 years of age or older and/or have legal capacity to form a binding contract or, as set forth below, users who are between 14 and 17 years of age with consent of a parent or guardian. If you are between 14 and 17 years of age or have not reached the age of majority in your jurisdiction of residence, you may not use the Flayk app, Site, Software or Services except with the supervision and permission of a parent or legal guardian. You shall not access or sue the Flayk app, Site, Software or Services if you are under the age of 13. If you accept these Terms of Use, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity.
By using the Services or Software or visiting or browsing the Site, you acknowledge that you have read, understood, and agreed to be bound by these Terms of Use and any modifications that may be made to the Terms of Use from time to time, and agree to allow advertisements to be displayed while you are using the Site, Software and/or Services. In addition, to the extent our Services require you to set up a family account with a shared password, if you are designated as “Admin” in the Flayk account, or are otherwise the person who first registers for a Service, you agree to be responsible for ensuring that all users on your Flayk account comply with these Terms of Use and any modifications that may be made to the Terms of Use from time to time. If you do not agree to these Terms of Use, you cannot use the Services or Software or visit or browse the Site. These Terms of Use constitute a binding legal agreement between you and Flayk. Please read them carefully before accessing or using the Site, the Software, or the Services. Before you continue, you should print or save a local copy of these Terms of Use for your records.
- Modifications
We reserve the right to modify these Terms of Use at any time and in any manner at our sole discretion, including the right to charge for the Software or Services. Notice of any modification of these Terms of Use will be posted in this section of the Site, and any such modifications will be effective upon the posting of such notice. Your continued use of the Site or the Services constitutes your binding acceptance of such modifications. Please check this section of the Site before using the Site, the Services or the Software to determine whether a change has been made to these Terms of Use. If you do not agree to any changes in the Terms of Use as they may occur, please arrange to terminate your registration with the Site immediately and discontinue your use of the Service, Software, and the Site. You agree that we are not liable to you or to any thirdparty for any modification of the Terms of Use. In addition, the Terms of Use will always indicate the date it was last revised.
- Registration
By registering for any Service or maintaining an Admin account, you acknowledge that you are at least 18 years old. You may, however, add a user to your family account who is younger than 18 years old, but only if you are such user’s parent or legal guardian according to the terms specified in Section 1 above. You agree to provide true, accurate, current, and complete information about yourself as prompted by any registration form for the Site, the Services, or the Software (such information being the “Registration Data”), and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have any reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse to offer you any and all current or future use of the Services, the Site, or the Software. You are responsible for maintaining the confidentiality of your account and shared password and for restricting access to your computer. You are solely responsible for any activity related to your account. If you suspect any unauthorized use of your account, notify us immediately. You acknowledge and agree that we may preserve user information and may also disclose user information if required to do so by law or if we believe in good faith that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any Content (as defined below in Section 4) violates the rights of third parties; or (d) protect the rights, property, or personal safety of Flayk, its users, or the public.
You may become a registered user of the Site, Software, and Services at no cost. As a registered user, you will have the ability to participate in some, but perhaps not all, of the features and functionality available at the Site or as part of the Software and Services. In order to access additional features and functionality (including a no-advertisement version of the Site, Software and/or the Services), you may need to become a premium subscriber to the Site, the Software, and the Services for a fee. In the event that premium subscriptions are offered to users (each, a “Premium Subscription”), a description of the current Premium Subscription and associated fees will be made available to you at the Site or through the Software. We reserve the right to adjust the monthly fees or terms of our Premium Subscriptions at any time for any reason; provided that once you are a premium subscriber, the fees shall be charged in accordance with your subscription terms, subject to adjustment only at the end of the committed subscription period. The Premium Subscription policies that are made available to you in connection with your decision to become a premium subscriber are deemed part of these Terms of Use and are incorporated by this reference. In order to be able to purchase a Premium Subscription, you must, in addition to the requirements herein, register with us or our designated third-party payment provider with a valid, accepted, credit card or other payment method that we, in our sole discretion, elect to accept as payment.
- Payment Options and Authorization; Payment Terms; Cancellations and Refunds; Taxes
Payment Options. Most purchases of Premium Subscriptions through the Site, the Software, or the Services, or through our designated thirdparty payment provider, will require a valid, accepted, credit card or other payment method that we, or our designated thirdparty payment provider, as applicable, in our or their sole discretion, elect to accept as payment.
Payment Terms. For purchases of Premium Subscriptions through the Site, the Software, or the Services, you authorize us, or our designated third-party payment providers, to charge the credit card or other accepted payment method you designate in the amount specified in connection with the transaction, including recurring payments to be charged on a monthly and/or annual basis and/or another frequency associated with the subscription plan chosen. If you desire to designate a different form of payment, or if there is a change in your payment information, you must update your user account or your account with our designated thirdparty payment provider, as applicable, to reflect such change. You may experience temporary disruption of your access to the Site, the Software, or the Service while we are verifying new payment information. If you transmit to us, or one of our designated third-party payment providers, a purchase request, you warrant that your use of the particular credit card or other accepted payment method is authorized and that all information that you submit to us, or our designated third-party payment provider, is true and accurate (including, without limitation, your credit card number, expiration date, and other account information), and you agree to pay all fees you incur.
Security and Fraud Controls. Our third-party payment providers are responsible for protecting the security of payment data you transmit. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your payment data at your own risk. We recommend you review our third-party partner’s privacy policy, which will help you understand they collect, use, and safeguard the information you provide.
Cancellations and Refunds. You may cancel your Premium Subscription at any time, and end your Premium benefits immediately. If you do not cancel a Premium Subscription before the auto-renewal date, you will be charged for the amount authorized. Flayk does not offer refunds on authorized payments. We, or our designated thirdparty payment provider, as applicable, reserve the right to refuse or cancel any purchases or attempted purchases at any time in our sole discretion. Further, we, or our designated thirdparty payment provider, as applicable, may reverse certain transactions if we have a reasonable, good-faith belief that such transactions, alone or together with other transactions, are illicit, fraudulent, abusive, unlawful, or otherwise conducted in bad faith or as part of any form of unfair dealing (which could include such things as cheating, hacking, or other prohibited activity). EXCEPT AS OTHERWISE STATED IN THESE TERMS OF USE OR REQUIRED BY APPLICABLE LAW, ALL SALES AND PURCHASES ARE FINAL.
Recurring Billing. Most Premium Subscriptions will consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By entering into these Terms of Use, you acknowledge that your Premium Subscription, if any, has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation of such Premium Subscription. If you do not cancel a Premium Subscription before the auto-renewal date, you will be charged for the amount authorized. Flayk does not offer refunds on authorized payments. WE, OR OUR DESIGNATED THIRDPARTY PAYMENT PROVIDER, AS APPLICABLE, MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD. TO TERMINATE YOUR SUBSCRIPTION, CONTACT OUR DESIGNATED THIRDPARTY PAYMENT PROVIDER, AS APPLICABLE.
Changes in the Amount Authorized. If the amount to be charged to you varies from the amount you previously authorized (other than due to the imposition or change in the amount of Sales Taxes (as defined below), if any), we, or our designated thirdparty payment provider, as applicable, shall provide notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. You agree that we, or our designated thirdparty payment provider, as applicable, may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
Auto-Renewal; Cancellation of Premium Subscriptions. Unless cancelled as described above, your Premium Subscription, if any, will be automatically extended for successive renewal periods of the same duration as the Premium Subscription term originally selected by you. You may prevent the renewal of your Premium Subscription at any time during the term of Premium Subscription, including any renewal period, by contacting our designated thirdparty payment provider, as applicable. If you do not cancel a Premium Subscription before the auto-renewal date, you will be charged for the amount authorized. Flayk does not offer refunds on authorized payments.
Free Trials and Other Promotions. Any free trial or other promotion that provides premium subscriber-level access to the Site, the Software, or the Service, if any, must be used within the specified time of the free trial or promotion, or if not specified, within six (6) months from the start of the free trial or promotion. At our discretion, we may allow you to continue access to the Site, Software, or Service following the end of the free trial or other promotion, provided that we may change the terms (including whether or not such Site, Software or Services display advertising) and/or fees associated with such access, and at such time, you will be required to elect either to accept such fees or terms or to elect either to accept such fees or terms or your account will be reverted to a Flayk standard account. You may be required to cancel your Premium Subscription before the end of the free trial period or promotional period in order to avoid being charged the then-current, non-promotional Premium Subscription rate and being subject to any new terms. If you cancel prior to the end of the free trial period or promotional period and are inadvertently charged for a Premium Subscription, please contact our designated thirdparty payment provider to have the charges reversed.
- Payments Made Through Partners. The payment methods that we elect to accept for purchase may include one or more payment methods offered by a business partner of Flayk (“Partner”), in which case your payment may be made directly to the Partner and not to us. In such cases, the Partner will be responsible for your payment, including cancellations and refunds, and the terms and conditions associated with your payment will be as set forth in the agreement between you and the applicable Partner.
- Currency. Unless otherwise stated, all fees and charges are quoted and must be paid in U.S. Dollars. Purchases made in currency other than U.S. Dollars shall be made at the exchange rate designated in your agreement with your credit card or other acceptable payment method provider.
- Taxes. Your purchases may be subject to applicable sales tax, use tax, value added tax, or other similar taxes, duties, or tariffs (collectively, “Sales Taxes”). In the event that Sales Taxes apply, we, our designated thirdparty payment provider, or a Partner, as applicable, will collect the required Sales Taxes from you and remit it to the applicable tax authorities. Under most circumstances, the applicability of Sales Taxes will be determined by the residence of the person or entity making the purchase. We will not be responsible for any taxes on net income, or other taxes, duties, or tariffs associated with your acquisition, purchase, or possession of Premium Subscriptions, except for Sales Taxes as described in this section or as required by applicable law.
Content: The Site, the Software, and the Services may allow you and other third parties to post data, text, code, help, opinions, advice, statements, reviews, comments, photographs, and other materials and information that will be accessible by visitors to and members of the Site (“Public Content”). The Site and the Services may also allow you to post data, text, code, help, opinions, advice, statements, reviews, comments, photographs, and other materials and information that will be accessible only to you and other members specifically designated by you (“Private Content” and, together with Public Content, collectively, “User Content”). All User Content, whether publicly posted on or privately transmitted via the Site, the Software, or the Services, is the sole responsibility of the person from whom the User Content originated and not of Flayk, or its shareholders, directors, officers, or employees. Flayk may review and delete any User Content, in whole or in part, that in the sole judgment of Flayk violates these Terms of Use or that might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will Flayk or its shareholders, directors, officers, or employees be held liable for any loss or damage caused by your reliance on User Content obtained through the Site, the Software, or the Services. It is your responsibility to evaluate the User Content available through the Services, the Software, or the Site. Although User Content will not be pre-screened or reviewed, we reserve the right to refuse or delete any User Content.
- Grant of Rights; Intellectual Property Rights
Except as provided in our Privacy Policy, Flayk will not disclose your Private Content to third parties without your express written permission, or where we believe, in good faith, that the law requires us to disclose the information. If you use our Site, Software or Services to send, email or otherwise transmit any of your User Content to a thirdparty, you grant to Flayk a royalty-free, world-wide, transferable license to use and reuse your User Content (or any portions or derivative works thereof) for such purpose. Flayk and its Partners reserve the right to display advertisements in connection with your User Content and to use your Public Content for advertising and promotional purposes. For more information on User Content, please review our Privacy Policy. You are responsible for your own User Content on the Flayk Site and the consequences of posting or publishing it. By uploading User Content to the Flayk Site, you hereby represent and warrant that:
- You own all right, title and interest (including all intellectual property rights) in your User Content (including, without limitation, all rights to the audio, video, or digital recording, and the performance contained in your User Content) or, alternatively, you have acquired all necessary rights in your User Content to enable you to grant the rights in your User Content described herein;
- You have already paid, and you will be solely responsible for paying (to the extent any later become due) all royalties, fees, and any other monies owing any person by reason of any User Content posted by you to or through the Site;
- You are the individual pictured and/or heard in your User Content, or, alternatively, you have obtained permission from any and all individuals (including consent from parents or guardians for any individual under the age of eighteen (18)) who appear and/or are heard in your User Content to grant the rights described herein;
- You shall make such permissions available to Flayk and its Partners upon request; and
- Your User Content does not infringe the intellectual property rights, privacy, or any other legal or moral rights of any thirdparty.
You agree to keep all records necessary to establish that your User Content does not violate any of the foregoing representations and warranties and to make such records available upon the request of Flayk. You acknowledge that your consideration for the rights you grant under these Terms and Conditions in and to your User Content is, among other things, the tools and functionality provided for your use on the Site and the possibility of Flayk or its Partners (or any of them individually) review or use of your User Content. You will not receive any further compensation of any kind for your User Content and you will not receive credit on or in association with the User Content. Your Public Content will not be acknowledged, returned or held “in confidence” by Flayk or its Partners. We and our Partners reserve the right in their respective sole discretion to remove or not post any User Content, for any reason. We and our Partners have no obligation to inform you of any decision to remove or not post such materials.
- Flayk User Rights
We may and will make efforts to, but have no obligation to, remove User Content and accounts containing User Content that we determine in our sole discretion to be unlawful, offensive, abusive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any party’s intellectual property or other rights, or these Terms of Use. While we prohibit offensive and unlawful conduct and content on our Site, you understand and agree that neither Flayk nor its Partners is responsible or liable for the User Content posted on the Site. You may be exposed to such materials and agree to use the Flayk Site at your own risk. Flayk reserves the right to discontinue any aspect of the Flayk Site at any time, including discontinuing any linked or embedded User Content either generally or in specific cases.
- Trademark; Copyright; Allegations of Copyright and Trademark Infringements; Notification
Flayk is a trademark of rosterdotcom, LLC. The Flayk logo is a trademark of rosterdotcom, LLC. All graphics, logos, page headers, button icons, scripts and service names are trademarks or trade dress of rosterdotcom, LLC. Any trademarks not owned by rosterdotcom, LLC that appear on the Site or the Software are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by rosterdotcom, LLC. All content and compilation thereof on the Site or the Software, including, but not limited to, text, graphics, logos, designs, photographs, button icons, images, data compilations, and the Software, is the property of rosterdotcom, LLC, its licensors, or its product suppliers, and is protected by United States and international copyright laws. No material, including, but not limited to, the material listed above, should be reproduced or used without our express written permission.
Flayk respects the intellectual property rights of others and asks that users of the Site, the Software and the Services do the same.
- Licenses
Subject to the terms of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable license to install and use one copy of the Software on an unlimited number of personal computers solely to use the Service to the extent you have the right to access the Service. Your right to access the Service will be limited by the terms of these Terms of Use. Except for this license granted to you, we retain all right, title, and interest in and to the Software, including all related intellectual property rights. The Software is protected by applicable intellectual property laws, including United States copyright law and international treaties. Except as otherwise explicitly provided in these Terms of Use or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Software; (b) rent, lease, or sublicense the Software; nor (c) circumvent or disable any security or technological features or measures in the Software. When you post Public Content, you hereby grant (or warrant that the owner of the Content grants) us a royalty-free, perpetual, irrevocable, fully sublicensable, worldwide, non-exclusive right to use, reproduce, modify, translate, adapt, publish, create derivative works of, transmit, distribute, perform, display, delete (in whole or in part), and incorporate the Public Content for any purpose and without acknowledgement to you. By posting or providing Public Content, you represent and warrant that public posting and use of your Public Content by us will not infringe on or violate the rights of any thirdparty.
- Usage Guidelines and Restrictions
You are responsible for all information, data, text, messages or other materials transmitted by you via the Site, the Software or the Services. You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under your login or account. You agree and acknowledge that you will not sell, trade or otherwise transfer your login or account to another party and that you will not, unless otherwise specifically agreed to in writing by Flayk, charge anyone access to any portion of the Site, the Software, or the Services, or any information therein. You agree that you are responsible for anything that happens through your account until you cancel your subscription and close your account or prove that your account security was compromised due to no fault of your own.
Any attempt by you to disrupt or interfere with the Site, the Software, or the Services including undermining or manipulating the legitimate operation of any Site, Software, or Service is a violation of Flayk policy and may be a violation of criminal and civil laws.
The Services are for the personal use of members. You agree not to use the Site, the Software, or the Services to:
- Upload, post, send email to, or otherwise transmit any Public Content that contains personally identifying information (such as actual names, phone numbers, mailing addresses, email addresses, and URLs), or any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- Harm minors in any way;
- Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
- Upload, post, send email to, or otherwise transmit Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Upload, post, send email to, or otherwise transmit Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights (“Rights”) of any party;
- Upload, post, send email to, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, links, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation;
- Upload, post, send email to, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Interfere with or disrupt the Services, the Site, or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site;
- Intentionally or unintentionally violate any applicable local, state, national, or international law, “stalk” or otherwise harass another, or collect or store personal data about other users;
- Use any automated means to access the Site or the Services or collect any information from the Site or the Services (including, without limitation, robots, spiders, or scripts); or
- Frame the Site or the Services, utilize framing techniques to enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that you must not engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information.
- Mobile Usage
The Site, the Software and the Services include mobile features that allow you to access information in your account from your mobile phone. Flayk does not charge for use of these features, but your mobile service provider may do so. Message and data rates may apply. You agree that you are solely responsible for these requirements, including any applicable charges, changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider. FLAYK MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (1) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION; (2) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (3) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
- Automatic Features of the Software
The Software contains a feature that allows it to automatically update to incorporate new versions of the Software. If you interrupt or disable this feature, your copy of the Software may not operate correctly. The Software may contain a feature that is used to automatically disable the Software to ensure that you do not use the Software longer than the term of your license to use the Software or your subscription to use the Services. You acknowledge that upon the expiration of your license to use the Software, and if Flayk has not granted you an extension, the Software may cease to function in some or all respects, and you may lose access to the Services and data made with or stored using the Software. You acknowledge that the disabling of the Software is a key feature of the license rights and responsibilities conveyed under this Agreement.
- Termination
These Terms of Use will remain in full force and effect while you use the Site, the Services or the Software unless otherwise terminated as set forth in this Section 12. You may terminate your membership at any time, for any reason, by contacting us at support@flayk.com. You agree that Flayk, in its sole discretion, may terminate your password, account (or any part thereof), and use of the Site, the Software, and the Services, and remove and discard any Content within the Site, for any reason, including, without limitation, for lack of use or if Flayk believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use, including failing to deliver payment for any Premium Subscriptions purchased by you within the required time. Flayk may also in its sole discretion and at any time modify or discontinue providing the Site or the Services, or any part thereof, with or without notice. You agree that any modification or termination of your access to the Site, the Services, or the Software may be effected without prior notice, and you acknowledge and agree that Flayk may immediately deactivate or delete your account and all related information and User Content in your account and bar any further access to such information or to the Site or the Services. You agree that Flayk shall not be liable to you or any thirdparty for any modification or termination of your access to the Site or the Services, or for your inability to recover any User Content.
- Privacy
Any information, including User Content, submitted on the Site or the Services, or via the Software, is subject to our Privacy Policy, the terms of which are incorporated into these Terms of Use. Please review our Privacy Policy carefully.
- Disclaimer of Representations and Warranties
THE SITE, THE SERVICES (INCLUDING ALL CONTENT), AND THE SOFTWARE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. FLAYK, ITS AFFILIATES, AND ITS THIRDPARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION WITH RESPECT TO THE SOFTWARE, THE SERVICES, THE CONTENT, THE SITE, OR ANY CONTENTS THEREIN. FLAYK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN PROVIDING THE SOFTWARE, THE SERVICES, THE SITE, OR THE CONTENT, ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE CONTENT, OR ANY CONDUCT BY USERS OF THE SITE. FLAYK EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE SOFTWARE, THE SERVICES, THE CONTENT, AND THE SITE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AUTHENTICITY, TITLE AND NON-INFRINGEMENT. IN ADDITION, FLAYK DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON OR ACCESSIBLE VIA THE SITE OR THROUGH THE SERVICES IS COMPLETE OR CURRENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS PROVISION MAY NOT APPLY TO YOU.
- Limitations on Liability
FLAYK AND ITS AFFILATES’ AND SUPPLIERS’, AND THEIR RESPECTIVE OFFICERS’, DIRECTORS’, SHAREHOLDERS’, EMPLOYEES’, AND AGENTS’ LIABILITY UNDER THESE TERMS OF USE IS LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. FLAYK AND ITS AFFILATES AND SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS WILL NOT BE HELD LIABLE FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, REGARDLESS OF WHETHER THESE PARTIES HAD ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. FLAYK AND ITS AFFILATES’ AND SUPPLIERS’, AND THEIR RESPECTIVE OFFICERS’, DIRECTORS’, SHAREHOLDERS’, EMPLOYEES’, AND AGENTS’ TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SOFTWARE, THE SERVICES, THE CONTENT, THE SITE, PREMIUM SUBSCRIPTIONS, OR THESE TERMS OF USE, WHETHER IN CONTRACT OR IN TORT, SHALL NOT EXCEED $100. EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS OF USE BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS OF USE.
- Beta Software
From time to time, Flayk may post, publish, distribute, present for download or otherwise make available Beta versions or portions of its Site, Service or Software (“Beta Software”) for public use. Beta Software may be identified as Beta, Beta 2, Beta 3, or Public Beta in the Site, the Service or the Software. Beta Software is available to the public for testing and evaluating purposes as part of the software development process. As a user of Beta Software you are encouraged, but not required, to identify potential errors and improvements (“Feedback”). You hereby grant Flayk the unrestricted right to use your Feedback, including the right to use your Feedback to improve the Software, the Site or the Service and to create other products and services. There are risks associated with using Beta Software. Beta Software has not yet been tested like other commercially released software that you may use. Therefore, it is likely that the Software will contain errors, including errors that may cause the Software or your computer to malfunction or cause a loss of data. If you do not wish to accept these risks, please do not install or use the Beta Software. Furthermore, Flayk is not obligated to correct errors or correct the effects of errors (e.g., fix your computer or recover lost data) or provide any technical support related to use of Beta Software.
- Indemnity
You agree to indemnify and hold Flayk, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of, resulting from or connected with the use, modification, misinterpretation, misuse, or reuse by you of the Software, the Site, the Services, or Content, including without limitation these Terms of Use.
- Thirdparty Software
Portions of the logging features of this Software were licensed under the Apache License, Version 2.0 (the “License”) and you may not use this file except in compliance with the License. You may obtain a copy of the License here. Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
- Links and Advertising
The Site, the Software and the Services display advertisements. We may provide, or third parties may provide, links to other Web sites or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us, with respect to such sites. FLAYK IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE CONTAINED OUTSIDE THE SITE. Your correspondence or business dealings with, or participation in promotions of, other users, advertisers, or partners found on or through the Site or the Services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such user, advertiser, or partner. You agree that Flayk is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Site or the Services.
- Governing Law and Arbitration
These Terms of Use are governed in all respects by the laws of the State of Rhode Island as such laws are applied to agreements entered into and to be performed entirely within Rhode Island between Rhode Island residents. Any controversy or claim arising out of or relating to these Terms of Use, the Services, the Software, the Products, or the Site will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Rhode Island, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Rhode Island law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. By using the Site, the Software, or the Services, you consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in Rhode Island.
- Release
In the event that you have a dispute with one or more users of the Site or the Services, you release Flayk (and our officers, directors, agents, subsidiaries, parent corporation, joint ventures, and employees) from 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. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
- Export Restrictions
You may not export or re-export the Software without (a) the prior written consent of Flayk and (b) complying with applicable export control laws and obtaining any necessary permits and licenses.
- General
Flayk’s failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. By using the Site or the Services, you consent to receiving electronic communications from Flayk. These communications will include notices about your account and information concerning or related to the Services. You agree that any notice, agreements, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Flayk is excused for any failure to perform to the extent that its performance is prevented by any reason outside of its control. These Terms of Use compose the entire agreement between you and Flayk and supersede all prior agreements between the parties regarding the subject matter contained herein. If any provisions of these Terms of Use are determined to be invalid or unenforceable in any jurisdiction shall not render invalid or unenforceable the remaining provisions of these Terms of Use or affect the validity or enforceability of such provisions in any other jurisdiction.
Questions
Please direct any questions regarding these Terms of Use to support@flayk.com.
Updated 12/16/2015.
