Terms Of Service

The Flassh service provided at https://www.flassh.co (the “Flassh Site”) is a product of Flassh LLC (referred to hereinafter as “Provider”). By using Flassh, you agree to the following terms of service (“the Terms”). The Terms govern your use of the Flassh software (“Flassh Software”) and the Flassh Site (the Flassh Software, Flassh Site, and all related applications are together referred to herein as “Flassh”). The Terms also govern your use of any related application, including the related iOS application, the related Android application, and the related Windows application (all applications related to Flassh are referred to herein as the “Flassh Applications”). The Terms govern the use of Flassh of the company of which you are an authorized agent (Hereinafter, the user of Flassh, whether you or the company of which you are a duly authorized agent, is referred to as the “Customer”). The Terms are the sole agreement between Customer and Provider regarding Customer’s use of Flassh. The Terms may be modified from time to time and Provider will notify the Customer by posting the modified terms on the Flassh Site; the Customer agrees to be bound by the most recent version of the Terms, as modified, on the Flassh Site. Provider may modify Flassh at its discretion, provided such modification does not materially adversely affect the features of the Flassh Site.

1. Term

The term of Customer’s use of Flassh shall be the term elected by Customer on the Flassh Site. The term shall consist of a period of on-site use of the Flassh Software for the purpose of photography and a subsequent term of one year of storage and display of the photographs on the Flassh Site and use of the Flassh Applications. Provider has the right to refuse use of Flassh to any person at Provider’s sole discretion.

2. Termination

By Provider

Provider may terminate Customer’s use of the Flassh Site and Flassh Applications without notice if (i) Provider reasonably determines that Customer is in violation of Section 4 of the Terms; (ii) Provider is threatened with a legal claim for intellectual property infringement due to Customer’s use of Flassh; or (iii) Provider receives notice under the Digital Millennium Copyright Act that Customer is engaging in intellectual copyright infringement on Flassh.

By You

Customer may terminate these Terms at any time by canceling your account on the Flassh Site, and shall pay all amounts due to Provider for use of Flassh through the end of the month in which Customer terminates these Terms in accordance with Section 2(c).

Effect of Termination

Customer acknowledges and agrees that Provider may, in its sole discretion and without obligation, delete all data or content in Provider’s possession or control, including but not limited to photographs and “Customer Data” as defined in Section 11(a) below, after thirty (30) days following any termination or expiration of this Agreement for any reason, without liability to Customer. Sections 2, 7, 8, 9, 10, 12, 13, and 14 will survive any expiration or termination of this Agreement. You are solely responsible for exporting your Content from Flassh prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).

Suspension of Your Flassh Account

Provider may suspend the provision of Flassh or the Flassh Site to Customer or remove any data or content stored on the Flassh Site without liability (i) if Provider reasonably believes that Customer is using Flassh in violation of the Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Provider shall use commercially reasonable efforts to notify Customer prior to suspending Customer’s access to Flassh as permitted under this Agreement, (iii) for any violation by Customer of Sections 3 or 4 of the Terms, (iv) as otherwise specified in the Terms. Information on the Flassh Site and Flassh Applications may be unavailable to Customer during a suspension.

3. Payments.

Fees

Customer shall pay Provider’s then current pricing for use of the Flassh (the “Fees”); Provider’s prices are listed at https://www.flassh.co/#pricing. The Fees shall accrue based on Customer’s usage of the Flassh Software, as specified on the Flassh Site.

Payment Method: Credit Card

Unless agreed upon in advance by Provider, upon Customer signing up for an account on the Flassh Site, Customer shall provide a valid credit card number to Provider. Provider shall automatically bill Customer’s credit card based on Customer’s usage of the Flassh Software after Customer’s usage of the Flassh Software and shall send a sales receipt to Customer for such Customer’s use of the Flassh Software via email. All payments from Customer to Provider in connection with use of Flassh must be made in United States dollars.

Late Payment

Provider may charge Customer a late fee on any amount that is not paid when due equal to the lesser of 1.5% per month or the maximum rate permitted by law, plus all reasonable expenses and costs of collection (including collection agency fees, attorney fees and court costs). Without limiting the foregoing, Provider may without liability immediately suspend any or all Customer use of Flassh, or immediately terminate its agreement with Customer, if payment for Flassh is rejected or declined or becomes the subject of a credit card chargeback. As a condition to any resumption of suspended or terminated use of Flassh, Customer shall pay Provider’s then current reinstatement fee.

Payment upon Termination

Without limiting any other remedy available to Provider, if the term expires or terminates for any reason, Customer shall pay all unpaid Fees related to periods up to and including the date of expiration or termination. Customer acknowledges and consents to Provider automatically charging Customer’s credit card for such amounts.

Taxes

Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity, or any non-US government entity on Provider for Customer’s use of Flassh (“Taxes”). Customer shall be liable for and shall pay any and all Taxes and related charges, however designated, imposed on the provision of Flassh (excluding taxes based solely on Provider’s net income) regardless of whether Provider fails to collect the tax at the time of initial payment. When Provider has the legal obligation to pay or collect such Taxes, the appropriate amount shall be paid by Customer, and Customer acknowledges and consents to Provider automatically charging Customer’s credit card for such amount, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Provider original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.

4. Customer Usage of Flassh

Prohibited Behavior

Customer shall not, and shall not permit any users of Flassh (such users “End Users”) or any other party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Provider to liability to third parties, including:

(i) use of the Flassh Software, the Flassh Site (including the Customer Site, as defined in Section 5), or the Flassh Applications to take, publish, transmit, view or otherwise use any photograph or any other content that in Provider’s opinion, (1) is obscene, (2) constitutes or promotes child pornography, (3) is excessively violent, incites or threatens violence, or contains harassing content or hate speech, (4) is illegally unfair or deceptive, (5) is defamatory or violates a person’s privacy, or (6) creates a safety or health risk to an individual;

(ii) infringement, misappropriation or other violation of any patent, trademark, copyright, right of publicity or other intellectual property or proprietary right;

(iii) use of any End User’s photograph for commercial purposes in violation of California Civil Code Section 3344;

(iv) the public unauthorized access, monitoring, interference with, or use of Provider or third party accounts, data, computers, systems or networks, including the introduction of viruses or similar harmful code to the Flassh, including the Flassh Site and Flassh Applications;

(v) interference with others’ usage of Flassh, the Flassh Site, the Flassh Applications or any system or network, including mail bombing, flooding, broadcast or denial of service attacks;

(vi) unauthorized collection or use of personal or confidential information, including phishing, pharming, scamming, spidering, and harvesting;

(viii) any other activity that places Provider in the position of fostering, or having liability for, illegal activity in any jurisdiction; or

(ix) attempting to probe, scan, penetrate or test the vulnerability of an Provider system or network or to breach Provider’s security or authentication measures, whether by passive or intrusive techniques.

Provider may suspend the provision of Flassh to Customer if Customer or an End User engages in any of the foregoing activities.

Security

Customer shall take all reasonable security precautions in connection with its use of Flassh. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access Flassh and shall change its passwords periodically. In addition, Customer shall protect the confidentiality of any and all devices used to access Flassh, the Flassh Site or the Flassh Applications. If the Customer Site (as defined in Section 5) is hacked or otherwise accessed by a third party without authorization, then Provider may take the Customer Site offline until Provider determines that the intrusion is finally resolved.

Provider may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer or End Users that Provider believes violates applicable criminal law; and (ii) provide any information that it has about Customer or its End Users in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.

Use of Third Party Products and Services

Customer’s use of Flassh may incorporate or include services or products provided by one or more third parties (“Third Party Products and Services”). Customer agrees that its use of those Third Party Products and Services may be subject to terms and conditions and policies (including any amendments or modifications to those terms and conditions and policies) that are specific to such Third Party Products and Services, and that it shall be bound by such terms and conditions and policies.

Removal of Content

Provider reserves the right (but shall have no obligation) to remove any or all content from the Flassh Site and Flassh Applications. Customer agrees to immediately take down any content that violates this Section 4 of the Terms, including pursuant to a take down request from Provider. In the event that you elect not to comply with a request from Provider to take down certain content, Provider reserves the right to directly take down such content or to disable Customer’s use of Flassh, including Customer’s use of the Flassh Site and the Flassh Applications.

Usage

Customer is entitled to the levels of usage specified in its pricing plan.

Support

Provider will provide the support specified on the Flassh Site.

Downtime

PROVIDER DISCLAIMS ANY AND ALL WARRANTIES CONCERNING DOWNTIME. In the event of an interruption in service of the Flassh Software, the Flassh Site or the Flassh Applications, Provider will take reasonable steps to restore service.

5. Customer Site; Customer Account.

During the Display Term, Customer will have access to its own storage and display center on the Flassh Site and the Flassh Applications (the “Customer Site”). Customer is solely responsible for the Customer Site, including for (i) controlling the access to, and use and security of, the Customer Site and the data residing in or processed via the Customer Site, (ii) maintaining the security of the passwords and other measures used to protect access to Customer’s account, and (iii) all instructions provided to Provider through Customer’s account, whether or not authorized by Customer. Customer must have valid and current information on file with its domain name registrar and may only use IP addresses which Provider assigns to it.

6. Ownership of Intellectual Property.

Provider’s Intellectual Property

As between the parties, Provider owns and shall retain all rights in Flassh (including all related infrastructure, including the Flassh Software, the Flassh Site and the Flassh Applications), Provider’s trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights.

Customer agrees not to (and not to permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of Flassh, or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Provider, in writing; or (b) attempt to disable or circumvent any security mechanisms used by Flassh.

Content

As between the parties, Customer owns and shall retain all rights in Customer’s content stored on the Flassh Site and Flassh Applications, including any photographs taken on the Flassh Software.

License to Provider

Customer grants Provider (and its subcontractors) during the term of this Agreement a non-exclusive, worldwide, royalty-free, sublicensable, license to use, reproduce, modify, publicly perform, publicly display and distribute Customer Data (as defined in Section 11 below) for purposes of providing Flassh hereunder. In addition, Provider shall have the right, but not the obligation, to retain copies of Customer Data for legal compliance purposes.

7. Customer Warranties

Customer represents and warrants to Provider that (i) the information Customer has provided for the purpose of establishing an account with Provider is complete and accurate, and (ii) it has the requisite power and authority to enter into these Terms and to perform all of its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information during the term of the Terms.

8. Indemnification

Customer shall indemnify, hold harmless and defend Provider from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys’ fees and expenses) arising out of or related to any of the following:

(i) actual or alleged use of the Flassh Software, the Flassh Site (including the Customer Site) and the Flassh Applications in violation of these Terms or applicable law by Customer or any End Users (including any actual or alleged infringement or misappropriation of third party intellectual property rights by the Customer Site or arising from photographs, data or other content taken, posted, published or stored using the Flassh Software, the Flassh Site (including the Customer Site) or the Flassh Applications by Customer or its End Users);

(ii) any dispute between Customer and its customers, contractors or End Users;

(iii) the operation or use of the Flassh Site (including the Customer Site) or any data or content contained therein or transmitted thereby; or

(iv) any violation by Customer, its customers, contractors or End Users, of any terms, conditions, agreements or policies of any Third Party Service Provider.

Customer shall not settle any claim under this Section 8 without the prior written consent of Provider.

9. Disclaimer of Warranties

EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, THE Flassh SOFTWARE, THE Flassh SITE (INCLUDING THE CUSTOMER SITE) AND THE Flassh APPLICATIONS ARE PROVIDED “AS IS” AND PROVIDER (FOR ITSELF, AND ITS AGENTS, SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS) DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NEITHER PROVIDER (NOR ANY OF ITS AGENTS, SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANT OR REPRESENT THAT THE Flassh SOFTWARE, THE Flassh SITE (INCLUDING THE CUSTOMER SITE) OR THE Flassh APPLICATIONS WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.

10. Limitation of Liability

NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL PROVIDER OR ANY OF ITS SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS, LICENSORS OR SUPPLIERS, BE LIABLE UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) FOR:

I. PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER CAUSED AND UNDER ANY THEORY OF LAW INCLUDING BREACH OF CONTRACT, STATUTE, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;

II. ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES ACTUALLY RECEIVED BY PROVIDER FROM CUSTOMER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT;

III. ANY AMOUNTS ARISING FROM A THIRD PARTY’S VIOLATION OF CUSTOMER’S INTELLECTUAL PROPERTY RIGHTS;

IV. THE DELETION OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF Flassh;

IV. ANY AMOUNTS ARISING FROM CUSTOMER’S VIOLATION OF THESE TERMS; or

V. LOSS OR COMPROMISE OF CUSTOMER DATA THAT RESULTS FROM ANY CAUSE OTHER THAN PROVIDER’S BREACH OF THE PROVIDER PRIVACY POLICY.

CUSTOMER ACKNOWLEDGES THAT EACH OF THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND THAT ABSENT SUCH LIMITATIONS PROVIDER WOULD NOT PROVIDE Flassh TO CUSTOMER OR ENTER INTO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT Flassh DOES NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES PROVIDER AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA. CUSTOMER FURTHER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATIONS AND CONTENT.

NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE, OR FOR FRAUD.

11. Provider Privacy Policy

Provider may use, process, transfer and disclose information or data of Customer and its End Users that is stored in a Customer Site or otherwise provided by Customer or its End Users as part of providing Flassh (collectively, “Customer Data”) as provided in the Provider Privacy Policy located at https://www.flassh.co/legal/privacy. The Customer warrants that it has read and agrees to the Provider Privacy Policy, and has the appropriate and necessary consents to permit the transfer by the Provider of Customer Data to a third party in accordance with and for the purposes set out in Provider’s Privacy Policy.

12. Third Party Products and Services

Third Party Terms

For all Third Party Products and Services (as defined in Section 4), Customer shall agree to terms of use or service, or license or other agreements or policies applicable thereto, including any modifications thereto mandated by the applicable Third Party Provider. Customer shall be responsible for strict compliance with, and any liability arising from, any violation of any such terms of use or service, or license or other agreements or policies. NOTWITHSTANDING ANYTHING TO THE CONTRARY, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THIRD PARTY PRODUCTS OR SERVICES OR RELATED SUPPORT SERVICES AND, AS BETWEEN CUSTOMER AND PROVIDER, SUCH THIRD PARTY PRODUCTS AND SERVICES AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, PROVIDER SHALL HAVE NO LIABILITY FOR LOSS, DESTRUCTION, ALTERATION OR UNAUTHORIZED ACCESS TO DATA OR OTHER CONTENT STORED OR TRANSMITTED USING THIRD PARTY PRODUCTS AND SERVICES.

Flassh may include hyperlinks to other web sites, content, resources or email content. Provider has no control over any web sites or resources which are provided by companies or persons other than Provider. You acknowledge and agree that Provider is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources. You acknowledge and agree that Provider is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

13. Notices

All notices to Provider under this Agreement (including notices required to be in writing) may be sent to Provider via e-mail through Customer’s Provider online support account (support@flassh.co). Notices to Customer under this Agreement shall be given via email to the individual designated as Customer’s “Customer Contact” when signing up for Flassh online through the Flassh Site, or as specified in these Terms, or by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a business day, as of the beginning of the first business day following the day delivered.

14. Miscellaneous

(c) Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California, USA, excluding its conflicts of law rules. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Except for disputes involving the assertion of Provider’s intellectual property rights and claims for injunctive relief, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration in San Diego County, California, using the English language, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. Such arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Arbitration Rules and Procedures. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Diego County, California. Use of Flassh is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.

(d) Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.

(e) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather, will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein.

(f) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

(g) Except with respect to Sections 9 and 10 as they apply to Provider’s parent, subsidiaries, affiliates, and Provider’s and its parent’s, subsidiaries’ and affiliates’ respective employees, officers, agents, licensors and suppliers, there are no third party beneficiaries to this Agreement.

(h) In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.

(i) Customer grants Provider the right during the term of this Agreement to use Customer’s name, mark and logo on the Flassh Site and in Provider’s promotional materials solely to identify Customer as a customer of Provider, in accordance with any usage guidelines delivered by Customer to Provider.

(j) The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other, and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Provider may provide Flassh and the Flassh Site to any person, including a competitor of Customer.

(k) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Provider may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all of its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.

(l) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.