Flocasts Terms of Use
1. Overview:
This Agreement applies to all use of the Flocasts Network. For the avoidance of doubt, this agreement applies when, through the registration process, you register to be an part of the Flocasts Network and use the Service to enable Your Website(s) with the User Service for the benefit of Your Users. This Agreement also applies to You when you use only that portion of the Service that is a Flocasts Core Site. Subject to the terms and conditions of this Agreement and your registration to be in the FloNetwork through the registration process, Flocasts hereby grants You the right to use the FloNetwork Admin Section and to make the User Service available to Your Users, on or through Your Websites, under the terms of this Agreement. Your right hereunder to use the FloNetwork Admin Section shall extend to any contractors acting on behalf of You pursuant to written agreement with you and in accordance with the terms of this Agreement, provided, however, that you shall be solely responsible for the acts and omissions of all such contractors, including without limitation, all use of the Service by such contractors. Implementation of the User Service on or through Your Website may be performed only in accordance with the terms and conditions of this Agreement and such other specifications as may be communicated by Flocasts LLC from time to time.
2. Restrictions and Limitations.
(a) You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way, except as expressly authorized in this Agreement; (ii) modify (except as permitted through the FloNetwork Admin) or make derivative works based upon the Service; (iii) reverse engineer the Service and/or any component thereof.
(b) You shall not utilize any part of the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws (as defined below); (ii) send or store infringing, obscene, threatening, libelous, defamatory, pornographic, online gambling, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or inconsistent with the generally accepted practices of the Internet community as reasonably determined by Flocasts; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) enable, further, or participate in any unlawful activity. You acknowledge and agree that if Flocasts becomes aware or has reason to believe that You are engaging in any such prohibited activity, it has the right to immediately suspend and/or terminate your use of the Service.
(c) All rights not expressly granted to You are reserved by Floc asts and its licensors.
3. Your Responsibilities
You are responsible for all activity occurring through the use of the Service by You and Your Users. You represent that You shall abide by all applicable local, state, national, and foreign laws and regulations in connection with use of the Service, including, without limitation, those related to intellectual property and privacy (collectively, "Laws"). You shall report to Flocasts LLC immediately and use reasonable efforts to stop immediately any unlawful copying or distribution of Content that is known or suspected by You or Your Users.
You will not obscure or contravene or attempt to obscure or contravene any notices of or attribution to Flocasts displayed within the Service that relate to Flocasts' role as a service provider. You acknowledge and agree that Your Website shall contain a terms of use agreement ("Your Terms of Use") that (i) contains certain non-modifiable language required by Flocasts LLC as set forth within the Administration Service in the End User Agreement configuration area located at: To Be Determined and (ii) is otherwise at least as protective of Flocasts as this Agreement. If you choose to translate Your Website language or otherwise customize text displayed within your website, you will provide a translated copy of Your Terms of Use with identical meaning that can be understood by your audience; you will similarly update the "unsubscribe" links that appear in all system-generated emails. You acknowledge that only those who have agreed to be bound by Your Terms of Use may submit any Content and/or User Data through the User Service.
4. The FloNetwork
You may pull in any videos from the FloNetwork that you see fits the demographic for your site. Flocasts may choose to suspend this right for any reason we see fit. You acknowledge that your content or users content in the form of videos, pictures, blogs articles maybe pulled to other sites within the FloNetwork including but not limited to any Flocasts' owned site.
Every video will have at least one Global Logo listed with that video. These Global Logos will follow the video where ever the video goes. Flocasts reserves the right to modify in appearance or functionality or completely remove the Global Logos tied to each videos.
5. Advertising
You cannot place any type of preroll, post roll, or banner advertising within, on top of a video that is not actually within your video. You may choose advertising on your site as you see fit.
You acknowledge that your content may be pulled by a Flocasts owned or a FloNetwork site and be displayed next to advertising that you have no control of. Furthermore, you may pull content from the FloNetwork and be displayed next to advertising of your choice.
6. Content Ownership
As between You and Flocasts, Content shall be the property of You. You hereby grant to Flocasts a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform Content on or through the Service and FloNetwork in order to provide the Service; (ii) to use and analyze the Content in furtherance of Flocasts' internal business purposes; and (iii) disclose metrics regarding Content on an aggregated basis for marketing and business development purposes.
You acknowledge and agree that You have sole responsibility for ensuring that all Content submitted on or through the Service and FloNetwork by You or Your Users is compliant with the terms and conditions of this Agreement, all other terms of use agreements, disclaimers and notices that may be displayed by Flocasts on or through the Services, and all Laws ("Applicable Terms") and You shall actively monitor the activity of Your Users through the FloNetwork Admin in order to ensure that no such activity is in violation of any Applicable Terms. You, and not Flocasts, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Content, and Flocasts shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content. Flocasts reserves the right to, without notice, withhold, remove and/or discard Content not in compliance with the Applicable Terms, and to remove or disable the account of any of Your Users not in compliance with the Applicable Terms.
7. User Data
As between You and Flocasts, all User Data shall be the property of You. You hereby grant Flocasts a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform User Data on or through the Service and FloNetwork in order to provide the Service; and (ii) to use and analyze the User Data in furtherance of Flocasts' internal business purposes; and (iii) disclose the User Data and related metrics on an aggregated basis for marketing and business development purposes, including targeting advertisements through the Service, provided that such aggregated User Data does not identify any of Your Users individually. You shall ensure that Your Terms of Use allows for the foregoing and shall indemnify, defend and hold Flocasts harmless from and against any claims of your Users resulting from Flocasts use of the User Data in accordance with the terms of this Section 7.
7.1 Flocasts Intellectual Property.
Flocasts and its licensors, partners, or affiliates, where applicable, shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights in and to the FlocastsTechnology. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Flocasts Technology or the Intellectual Property Rights owned by Flocasts. The Flocasts name, the Flocasts logo, and the product names associated with the Service are trademarks of Flocasts, and no right or license is granted to use them.
7.2 Feedback
You hereby assign and agree to assign to Flocasts all right, title, and interest in and to any enhancement requests, recommendations, suggestions, comments, evaluations, ideas, or other information relating to the Service (ìFeedbackî) provided by You to Flocasts, including, but not limited to, all Intellectual Property Rights embodied in such Feedback.
7.3 Notice and Procedure For Making Claims of Copyright Infringement and Issuing Counter-Notices
7.3.1 Notices of Claimed Copyright Infringement
Flocasts respects the Intellectual Property Rights of others. Flocasts does not, however, independently confirm that all Content made available through the Service is provided by a valid rights holder. If you believe that your work has been copied or published in a way that constitutes copyright infringement, please provide Flocasts' Copyright Agent (as defined below) the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located or found on the website or Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Flocasts' agent for notice of claims of copyright infringement ("Copyright Agent") can be filed by going to this page http://www.flocasts.com/page/Copyright-Issues
7.3.2 Counter Notices
In the event that Flocasts receives a notice of infringement as described in Section 8.3.1 above concerning Content that you have made available through the Service or otherwise becomes aware that you are not a valid rights holder of Content that you have published on or otherwise made available through the Service, Flocasts may contact you and direct you to take-down the Content. In the event you fail to respond to Flocasts take-down notices and/or when Flocasts otherwise determines that such action is necessary and/or advisable, Flocasts may also remove and/or disable access to and/or publication of such Content without further notice to you.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use your Content, you may send a counter-notice containing the following information to the Copyright Agent:
(a) Your physical or electronic signature;
(b) Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the Content; and
(d) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Austin, TX, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Flocasts may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Flocasts' sole discretion.
8. Modification of Terms
Flocasts reserves the right to modify this Agreement or its policies relating to the Service and other Applicable Terms, at any time, effective upon posting of an updated version of this Agreement, policies and/or other Applicable Terms on the Service. You are responsible for regularly reviewing this Agreement and such policies, the current version of which shall be made available as set forth herein through the Flocasts Site. If any change to this Agreement is not acceptable to You, Your sole remedy is to terminate Your use of the Service and any other rights under this Agreement. Any use of the Service after such publication shall constitute acceptance by You of such revised Agreement.
9. Term and Termination
9.1 Term.This Agreement commences upon Your acceptance of this Agreement by clicking ìI Acceptî in the sign-up process for the Service and shall continue until terminated (the ìTermî). Use of the Service is subject to compliance with this Agreement. You acknowledge and agree that Flocasts may terminate and/or suspend your access to the FloNetwork Admin any portion of the Service for any reason or for no reason at all, in Flocasts sole discretion, without prior notice. You may terminate this Agreement at any time by discontinuing Your use of the Service, including removal of any link or other mechanism by which the Service is implemented on Your Website.
9.2 Effects of Termination. Upon termination or expiration, Your right to access or use User Content shall immediately cease, and Flocasts shall have no obligation to retain copies of any User Content or data of Your Users. Upon termination or expiration of this Agreement, the following provisions will survive in full force and effect: 4, 5, 6, 7, 8, 10.2, 11, 12, 13 and 15, and any other clause or portion of a clause which, by its nature, is intended to survive termination or expiration of this Agreement.
10. Indemnification
You shall indemnify and hold Flocasts, its licensors, partners and each such partyís parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, demands, costs, damages, losses, liabilities and expenses (including attorneysí fees and costs) arising out of or in connection with: (i) any Content, including without limitation any claim alleging that use of any Content infringes or misappropriates the rights of, or has caused harm to, a third party; (ii) a breach or violation by You or any of Your Users of any responsibilities, representations, covenants, or warranties under this Agreement and/or other Applicable Terms; or (iii) Your Website. You agree that Flocasts licensors and partners shall be third party beneficiaries of Your indemnification obligations hereunder.
11. Disclaimer of Warranties
You acknowledge and agree that by using the Service, you may be exposed to Content that is offensive, indecent, or objectionable. You further acknowledge and agree that the Service and the Content may contain errors or omissions. You acknowledge and agree that Flocasts does not screen or review published Content on the Service to determine whether it contains false or defamatory material or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Flocasts be liable in any way for Content, including, but not limited to, for any defamation, falsehoods, errors, or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use or publication of any such Content posted, emailed, or otherwise transmitted via the Service. Flocasts does not guarantee that any Content will be to your satisfaction.
FLOCASTS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. FLOCASTS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. FLOCASTS AND ITS LICENSORS HEREBY DISCLAIM (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
FLOCASTS' SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FLOCASTS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12. Limitation of Liability
IN NO EVENT SHALL FLOCASTS' AGGREGATE LIABILITY ARISING WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY FLOCASTS AND ATTRIBUTABLE TO REVENUE GENERATED FROM USE OF THE USER SERVICE THROUGH YOUR WEBSITE, IF ANY, IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH CLAIMS ARE BASED. IN NO EVENT SHALL FLOCASTS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, IN THE CONTENT, EVEN IF THE FLOCASTS OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Force Majeure
In no event shall Flocasts incur any liability to You or any of Your Users on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement to the extent such delay or failure is caused by events, occurrences, or causes beyond the control and without negligence of Flocasts, including by not limited to acts of God, strikes, riots, acts of war, lockouts, earthquakes, fires and explosions.
14. General
This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, TX. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. All notices to be delivered under this Agreement shall be sent via postal mail to the applicable party at the address notified by the applicable party in writing. Notice shall be deemed to have been given forty-eight (48) hours after the mailing of the written notice. No joint venture, partnership, employment, or agency relationship exists between You and Flocasts as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the waiving party in writing. The section headings herein are included merely for convenience of reference, do not limit or affect any of the contents of this Agreement, and are not to be considered part of, or to be used in interpreting, this Agreement. Flocasts may assign this Agreement at any time without prior notice to You. You may not assign this Agreement without the prior written consent of Flocasts, which consent may be withheld by Flocasts at its sole discretion. Any purported assignment by You in violation of this section shall be void. This Agreement, which incorporates the Flocasts' Privacy Policy comprises the entire agreement between You and Flocasts and governs Your use of the Service, superseding all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter hereof.
This Agreement applies to all use of the Flocasts Network. For the avoidance of doubt, this agreement applies when, through the registration process, you register to be an part of the Flocasts Network and use the Service to enable Your Website(s) with the User Service for the benefit of Your Users. This Agreement also applies to You when you use only that portion of the Service that is a Flocasts Core Site. Subject to the terms and conditions of this Agreement and your registration to be in the FloNetwork through the registration process, Flocasts hereby grants You the right to use the FloNetwork Admin Section and to make the User Service available to Your Users, on or through Your Websites, under the terms of this Agreement. Your right hereunder to use the FloNetwork Admin Section shall extend to any contractors acting on behalf of You pursuant to written agreement with you and in accordance with the terms of this Agreement, provided, however, that you shall be solely responsible for the acts and omissions of all such contractors, including without limitation, all use of the Service by such contractors. Implementation of the User Service on or through Your Website may be performed only in accordance with the terms and conditions of this Agreement and such other specifications as may be communicated by Flocasts LLC from time to time.
2. Restrictions and Limitations.
(a) You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way, except as expressly authorized in this Agreement; (ii) modify (except as permitted through the FloNetwork Admin) or make derivative works based upon the Service; (iii) reverse engineer the Service and/or any component thereof.
(b) You shall not utilize any part of the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws (as defined below); (ii) send or store infringing, obscene, threatening, libelous, defamatory, pornographic, online gambling, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or inconsistent with the generally accepted practices of the Internet community as reasonably determined by Flocasts; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) enable, further, or participate in any unlawful activity. You acknowledge and agree that if Flocasts becomes aware or has reason to believe that You are engaging in any such prohibited activity, it has the right to immediately suspend and/or terminate your use of the Service.
(c) All rights not expressly granted to You are reserved by Floc asts and its licensors.
3. Your Responsibilities
You are responsible for all activity occurring through the use of the Service by You and Your Users. You represent that You shall abide by all applicable local, state, national, and foreign laws and regulations in connection with use of the Service, including, without limitation, those related to intellectual property and privacy (collectively, "Laws"). You shall report to Flocasts LLC immediately and use reasonable efforts to stop immediately any unlawful copying or distribution of Content that is known or suspected by You or Your Users.
You will not obscure or contravene or attempt to obscure or contravene any notices of or attribution to Flocasts displayed within the Service that relate to Flocasts' role as a service provider. You acknowledge and agree that Your Website shall contain a terms of use agreement ("Your Terms of Use") that (i) contains certain non-modifiable language required by Flocasts LLC as set forth within the Administration Service in the End User Agreement configuration area located at: To Be Determined and (ii) is otherwise at least as protective of Flocasts as this Agreement. If you choose to translate Your Website language or otherwise customize text displayed within your website, you will provide a translated copy of Your Terms of Use with identical meaning that can be understood by your audience; you will similarly update the "unsubscribe" links that appear in all system-generated emails. You acknowledge that only those who have agreed to be bound by Your Terms of Use may submit any Content and/or User Data through the User Service.
4. The FloNetwork
You may pull in any videos from the FloNetwork that you see fits the demographic for your site. Flocasts may choose to suspend this right for any reason we see fit. You acknowledge that your content or users content in the form of videos, pictures, blogs articles maybe pulled to other sites within the FloNetwork including but not limited to any Flocasts' owned site.
Every video will have at least one Global Logo listed with that video. These Global Logos will follow the video where ever the video goes. Flocasts reserves the right to modify in appearance or functionality or completely remove the Global Logos tied to each videos.
5. Advertising
You cannot place any type of preroll, post roll, or banner advertising within, on top of a video that is not actually within your video. You may choose advertising on your site as you see fit.
You acknowledge that your content may be pulled by a Flocasts owned or a FloNetwork site and be displayed next to advertising that you have no control of. Furthermore, you may pull content from the FloNetwork and be displayed next to advertising of your choice.
6. Content Ownership
As between You and Flocasts, Content shall be the property of You. You hereby grant to Flocasts a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform Content on or through the Service and FloNetwork in order to provide the Service; (ii) to use and analyze the Content in furtherance of Flocasts' internal business purposes; and (iii) disclose metrics regarding Content on an aggregated basis for marketing and business development purposes.
You acknowledge and agree that You have sole responsibility for ensuring that all Content submitted on or through the Service and FloNetwork by You or Your Users is compliant with the terms and conditions of this Agreement, all other terms of use agreements, disclaimers and notices that may be displayed by Flocasts on or through the Services, and all Laws ("Applicable Terms") and You shall actively monitor the activity of Your Users through the FloNetwork Admin in order to ensure that no such activity is in violation of any Applicable Terms. You, and not Flocasts, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Content, and Flocasts shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content. Flocasts reserves the right to, without notice, withhold, remove and/or discard Content not in compliance with the Applicable Terms, and to remove or disable the account of any of Your Users not in compliance with the Applicable Terms.
7. User Data
As between You and Flocasts, all User Data shall be the property of You. You hereby grant Flocasts a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform User Data on or through the Service and FloNetwork in order to provide the Service; and (ii) to use and analyze the User Data in furtherance of Flocasts' internal business purposes; and (iii) disclose the User Data and related metrics on an aggregated basis for marketing and business development purposes, including targeting advertisements through the Service, provided that such aggregated User Data does not identify any of Your Users individually. You shall ensure that Your Terms of Use allows for the foregoing and shall indemnify, defend and hold Flocasts harmless from and against any claims of your Users resulting from Flocasts use of the User Data in accordance with the terms of this Section 7.
7.1 Flocasts Intellectual Property.
Flocasts and its licensors, partners, or affiliates, where applicable, shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights in and to the FlocastsTechnology. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Flocasts Technology or the Intellectual Property Rights owned by Flocasts. The Flocasts name, the Flocasts logo, and the product names associated with the Service are trademarks of Flocasts, and no right or license is granted to use them.
7.2 Feedback
You hereby assign and agree to assign to Flocasts all right, title, and interest in and to any enhancement requests, recommendations, suggestions, comments, evaluations, ideas, or other information relating to the Service (ìFeedbackî) provided by You to Flocasts, including, but not limited to, all Intellectual Property Rights embodied in such Feedback.
7.3 Notice and Procedure For Making Claims of Copyright Infringement and Issuing Counter-Notices
7.3.1 Notices of Claimed Copyright Infringement
Flocasts respects the Intellectual Property Rights of others. Flocasts does not, however, independently confirm that all Content made available through the Service is provided by a valid rights holder. If you believe that your work has been copied or published in a way that constitutes copyright infringement, please provide Flocasts' Copyright Agent (as defined below) the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located or found on the website or Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Flocasts' agent for notice of claims of copyright infringement ("Copyright Agent") can be filed by going to this page http://www.flocasts.com/page/Copyright-Issues
7.3.2 Counter Notices
In the event that Flocasts receives a notice of infringement as described in Section 8.3.1 above concerning Content that you have made available through the Service or otherwise becomes aware that you are not a valid rights holder of Content that you have published on or otherwise made available through the Service, Flocasts may contact you and direct you to take-down the Content. In the event you fail to respond to Flocasts take-down notices and/or when Flocasts otherwise determines that such action is necessary and/or advisable, Flocasts may also remove and/or disable access to and/or publication of such Content without further notice to you.
If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use your Content, you may send a counter-notice containing the following information to the Copyright Agent:
(a) Your physical or electronic signature;
(b) Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the Content; and
(d) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Austin, TX, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Flocasts may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Flocasts' sole discretion.
8. Modification of Terms
Flocasts reserves the right to modify this Agreement or its policies relating to the Service and other Applicable Terms, at any time, effective upon posting of an updated version of this Agreement, policies and/or other Applicable Terms on the Service. You are responsible for regularly reviewing this Agreement and such policies, the current version of which shall be made available as set forth herein through the Flocasts Site. If any change to this Agreement is not acceptable to You, Your sole remedy is to terminate Your use of the Service and any other rights under this Agreement. Any use of the Service after such publication shall constitute acceptance by You of such revised Agreement.
9. Term and Termination
9.1 Term.This Agreement commences upon Your acceptance of this Agreement by clicking ìI Acceptî in the sign-up process for the Service and shall continue until terminated (the ìTermî). Use of the Service is subject to compliance with this Agreement. You acknowledge and agree that Flocasts may terminate and/or suspend your access to the FloNetwork Admin any portion of the Service for any reason or for no reason at all, in Flocasts sole discretion, without prior notice. You may terminate this Agreement at any time by discontinuing Your use of the Service, including removal of any link or other mechanism by which the Service is implemented on Your Website.
9.2 Effects of Termination. Upon termination or expiration, Your right to access or use User Content shall immediately cease, and Flocasts shall have no obligation to retain copies of any User Content or data of Your Users. Upon termination or expiration of this Agreement, the following provisions will survive in full force and effect: 4, 5, 6, 7, 8, 10.2, 11, 12, 13 and 15, and any other clause or portion of a clause which, by its nature, is intended to survive termination or expiration of this Agreement.
10. Indemnification
You shall indemnify and hold Flocasts, its licensors, partners and each such partyís parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, demands, costs, damages, losses, liabilities and expenses (including attorneysí fees and costs) arising out of or in connection with: (i) any Content, including without limitation any claim alleging that use of any Content infringes or misappropriates the rights of, or has caused harm to, a third party; (ii) a breach or violation by You or any of Your Users of any responsibilities, representations, covenants, or warranties under this Agreement and/or other Applicable Terms; or (iii) Your Website. You agree that Flocasts licensors and partners shall be third party beneficiaries of Your indemnification obligations hereunder.
11. Disclaimer of Warranties
You acknowledge and agree that by using the Service, you may be exposed to Content that is offensive, indecent, or objectionable. You further acknowledge and agree that the Service and the Content may contain errors or omissions. You acknowledge and agree that Flocasts does not screen or review published Content on the Service to determine whether it contains false or defamatory material or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Flocasts be liable in any way for Content, including, but not limited to, for any defamation, falsehoods, errors, or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use or publication of any such Content posted, emailed, or otherwise transmitted via the Service. Flocasts does not guarantee that any Content will be to your satisfaction.
FLOCASTS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. FLOCASTS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. FLOCASTS AND ITS LICENSORS HEREBY DISCLAIM (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
FLOCASTS' SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FLOCASTS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12. Limitation of Liability
IN NO EVENT SHALL FLOCASTS' AGGREGATE LIABILITY ARISING WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY FLOCASTS AND ATTRIBUTABLE TO REVENUE GENERATED FROM USE OF THE USER SERVICE THROUGH YOUR WEBSITE, IF ANY, IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH CLAIMS ARE BASED. IN NO EVENT SHALL FLOCASTS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, IN THE CONTENT, EVEN IF THE FLOCASTS OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Force Majeure
In no event shall Flocasts incur any liability to You or any of Your Users on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement to the extent such delay or failure is caused by events, occurrences, or causes beyond the control and without negligence of Flocasts, including by not limited to acts of God, strikes, riots, acts of war, lockouts, earthquakes, fires and explosions.
14. General
This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, TX. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. All notices to be delivered under this Agreement shall be sent via postal mail to the applicable party at the address notified by the applicable party in writing. Notice shall be deemed to have been given forty-eight (48) hours after the mailing of the written notice. No joint venture, partnership, employment, or agency relationship exists between You and Flocasts as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the waiving party in writing. The section headings herein are included merely for convenience of reference, do not limit or affect any of the contents of this Agreement, and are not to be considered part of, or to be used in interpreting, this Agreement. Flocasts may assign this Agreement at any time without prior notice to You. You may not assign this Agreement without the prior written consent of Flocasts, which consent may be withheld by Flocasts at its sole discretion. Any purported assignment by You in violation of this section shall be void. This Agreement, which incorporates the Flocasts' Privacy Policy comprises the entire agreement between You and Flocasts and governs Your use of the Service, superseding all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter hereof.
