LICENSE AND USE AGREEMENT
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING, USING, AND/OR ACCESSING ALL OR ANY PORTION OF THE FLEXDEN MARKETPLACE (“FlexDen.net”) YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AND USE AGREEMENT (“AGREEMENT”), INCLUDING, BUT NOT LIMITED TO, THE WARRANTY, LIABILITY, AND INDEMNITY SECTIONS BELOW. YOU AGREE THAT DOWNLOADING THE FLEXDEN MARKETPLACE AND YOUR CONTINUED USE OF THE FLEXDEN MARKETPLACE (INCLUDING ACCESSING THE CONTENT AVAILABLE THROUGH THE FLEXDEN MARKETPLACE, AS FURTHER DISCUSSED BELOW) INDICATES YOUR ACCEPTANCE OF AND AGREEMENT TO ABIDE BY THE TERMS OF THIS AGREEMENT. DO NOT DOWNLOAD OR USE THIS FLEXDEN MARKETPLACE IF YOU CANNOT OR DO NOT AGREE TO THE TERMS OF THIS AGREEMENT.
Access to the FlexDen Marketplace is limited to users who agree to be bound by the terms of this Agreement (“you,” “your,” or "Users").
1. General.
Your right to use the FlexDen Marketplace is personal to you and is not transferable to any other person or entity. We grant you a limited, revocable, nonexclusive license to access the FlexDen Marketplace and utilize it for your own personal use, and not to download or modify it, or any portion of it unless the FlexDen Marketplace specifically provides for as such. You acknowledge that we may establish limits concerning your use of the FlexDen Marketplace. FlexDen, Inc. d/b/a FlexDen.net shall have the right at any time to change or discontinue the FlexDen Marketplace, and any aspect or feature hereof, including, but not limited to, content, compatible FlexDen Marketplace needed for access or use and any other capability(ies) of the FlexDen Marketplace (including the services to which the FlexDen Marketplace allows you to link). FlexDen.net may change or modify the terms and conditions applicable to User's use of the FlexDen Marketplace or any part thereof or to impose new conditions at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting through the FlexDen Marketplace, as determined by FlexDen.net, and any other notice of such which may be given by any means including, but not limited to, electronic mail. Any use of the FlexDen Marketplace by User after such change, modification, addition or deletion shall be deemed to constitute acceptance by User thereof.
2. Password.
You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another User at any time or to disclose your password to any third party. You agree to notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
3. Intellectual Property.
The FlexDen Marketplace and/or content distributed through the FlexDen Marketplace are and/or contain copyrighted material, trademarks and other proprietary information, including (but not limited to) text, FlexDen Marketplace, photos, video, graphics, music and sound, and coding that are copyrighted under United States copyright laws (collectively, the "Materials"). In addition to content original to FlexDen.net within the Materials, FlexDen.net owns a copyright in the selection, coordination, arrangement and enhancement of the Materials, except for that portion of the Materials that is owned or controlled by certain third party service providers (“Service Providers”) as may be noted herein and/or within the FlexDen Marketplace. For the purposes of this Agreement, Service Providers shall include Facebook, Blogger, Twitter, YouTube ,Digg ,Twitter and Flickr. We reserve the right to add or delete Service Providers at any time. Use of the Service Providers’ Materials included in or through the FlexDen Marketplace shall be subject to other terms and conditions as noted herein and/or as provided on such Service Providers’ websites. FlexDen.net is not in any way associated or affiliated with the Service Providers and the FlexDen Marketplace has not been reviewed, approved or endorsed by Service Providers.
User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the Materials or other content on the FlexDen Marketplace, in whole or in part, and User may not decompile, reverse engineer, disassemble, and/or or otherwise reduce the FlexDen Marketplace and/or Materials containing Service Providers’ FlexDen Marketplace to a human-perceivable form. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or downloading of the Materials or other content is permitted without the express permission of FlexDen.net, the applicable Service Provider, or the copyright owner, as applicable.
4. User Generated Content.
We do not claim any ownership rights in the text, files, images, photos, videos, sounds, musical works, works of authorship, or any other materials (collectively “User Content”) that you post on or through the FlexDen Marketplace or that are posted on the Service Providers’ websites and then [transmitted] to the FlexDen Marketplace. You continue to retain any such rights that you may have in your User Content, subject to the limited license herein and any licenses or rights granted by you to any Service Provider. By displaying or publishing (“posting”) any User Content on or through the FlexDen Marketplace, you hereby grant to us a license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, distribute, exploit, transfer, assign or sublicense such User Content, including without limitation distributing part or all of the FlexDen Marketplace in any media formats and through any media channels. This license shall be non-exclusive, irrevocable, fully-paid and royalty-free, sublicensable, worldwide, and perpetual.
You represent and warrant that: (i) you own the User Content posted by you on or through the FlexDen Marketplace or otherwise have the right to grant the license set forth herein, and (ii) the posting of your User Content on or through the FlexDen Marketplace does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any User Content posted by you on or through the FlexDen Marketplace.
The FlexDen Marketplace contains User Content of other Users and other licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any other User Content appearing on or through the FlexDen Marketplace.
Your profile on the FlexDen Marketplace may not include, and you agree not to post on or through the FlexDen Marketplace, any form of Prohibited Content (as defined below). Despite this prohibition, information, materials, products or services provided by other Users may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms, and we assume no responsibility or liability for this material. If you become aware of any misuse of the FlexDen Marketplace by any person, please contact us at [insert email address].
We may reject, refuse to post or delete any User Content for any or no reason, including User Content that in our sole judgment violates this Agreement or which may be offensive, inappropriate, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. We assume no responsibility for monitoring the FlexDen Marketplace for inappropriate User Content or conduct. If at any time we choose, in our sole discretion, to monitor the FlexDen Marketplace, we nonetheless assume no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the User submitting any such User Content. You are solely responsible for the User Content that you post on or through the FlexDen Marketplace, and any material or information that you transmit to other Users and for your interactions with other Users.
5. Prohibited Content.
“Prohibited Content” includes, but is not limited to, any User Content that: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; (d) is harmful or can reasonably be expected to be harmful to any person or entity; (e) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them; (f) infringes or violates any right of a third party including right of privacy, right of publicity, copyright, patent, trademark, trade secret or other proprietary or contractual rights; (g) is commercial, business-related or advertises or offers to sell any products or services, whether or not for profit; (h) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the FlexDen Marketplace or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the FlexDen Marketplace; or (i) is antisocial, disruptive, or destructive, including "spamming," "flooding," and "trolling" as those terms are commonly understood and used on the Internet.
6. Disclaimer of Warranty; Limitation of Liability.
USER EXPRESSLY AGREES THAT USE OF THE FLEXDEN MARKETPLACE AND/OR MATERIALS IS AT USER'S SOLE RISK. NEITHER FlexDen.net, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, SERVICE PROVIDERS, OR LICENSORS WARRANT THAT THE FLEXDEN MARKETPLACE AND/OR MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO FlexDen.net OR THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE FLEXDEN MARKETPLACE AND/OR MATERIALS, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE FLEXDEN MARKETPLACE AND/OR MATERIALS.
THE FLEXDEN MARKETPLACE AND MATERIALS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
IN NO EVENT WILL FlexDen.net, ITS AFFILIATED COMPANIES, AGENTS, LICENSEES, SUCCESSORS AND ASSIGNS, OR ANY SERVICE PROVIDER, AND/OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE FLEXDEN MARKETPLACE AND/OR THE MATERIALS BE LIABLE FOR ANY DAMAGES, INCLUDING (WITHOUT LIMITATION) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE FLEXDEN MARKETPLACE AND/OR MATERIALS.
IN ADDITION TO THE TERMS SET FORTH ABOVE, NEITHER FlexDen.net NOR ITS AFFILIATES, INFORMATION PROVIDERS OR SERVICE PROVIDERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR INAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE FLEXDEN MARKETPLACE AND/OR MATERIALS, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING (BUT NOT LIMITED TO) LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES. NEITHER FlexDen.net NOR ITS AFFILIATES, INFORMATION PROVIDERS OR SERVICE PROVIDERS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY, OR COMPLETENESS OF THE INFORMATION PROVIDED THROUGH OR ON THE FLEXDEN MARKETPLACE AND/OR MATERIALS. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION.
IF ANY OF THE ABOVE LIMITATIONS DO NOT APPLY TO THE EXTENT APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, FlexDen.net's TOTAL, AGGREGATE LIABILITY FOR ALL LOSSES, DAMAGES AND CAUSES OF ACTION IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE WILL NOT BE GREATER THAN THE $100.
7. Indemnity.
User agrees to defend, indemnify and hold harmless FlexDen.net, the Service Providers, its and their respective affiliated companies and their shareholders, directors, officers, employees and agents of the foregoing from and against any and all claims and expenses, including attorneys’ fees, arising out of the use of and/or access to the FlexDen Marketplace and/or Materials by User.
8. Termination.
Either FlexDen.net or User may terminate this Agreement at any time for any reason or no reason. Without limitation of the foregoing, FlexDen.net may immediately terminate User's use of the FlexDen Marketplace in the event of any conduct by User which FlexDen.net, in its sole and absolute discretion, considers to be unacceptable or in breach of this Agreement or any applicable law or regulation or which does or may tend to expose FlexDen.net or any Service Provider or licensor to any liability. The provisions of this Agreement shall survive any termination of this Agreement for any reason. FlexDen.net may terminate any User’s access to or terminate in general any content, features, and/or services in the Materials or distributed through the FlexDen Marketplace, in whole or in part, at any time. In the event User terminates this Agreement, User must cease immediately all use of the FlexDen Marketplace and/or access to the Materials through the FlexDen Marketplace and User must uninstall the FlexDen Marketplace from all computers and devices onto which User had installed the FlexDen Marketplace.
9. Trademarks.
User shall have no rights to use any names, marks, logos, copyright titles, trademarks, service marks or other property of FlexDen.net and/or its members, affiliates, parents or subsidiaries except as expressly provided herein. Any other trademarks or service marks and associated logos found in the Materials, including the Service Providers’, are the trademarks or service marks of their respective owners in which user likewise has no rights. All rights not granted herein are hereby expressly reserved.
10. Third-Party Sites.
FlexDen.net is a distributor (and not a publisher) of the Materials supplied by the Service Providers. FlexDen.net does not operate or control in any respect any information, content, products or services in the Service Providers’ Materials and/or on their sites. Accordingly, FlexDen.net has no more editorial control over such Materials than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by Service Providers and/or any other third parties, Users or any other user of the FlexDen Marketplace, are those of the respective author(s) or distributor(s) and not of FlexDen.net. FlexDen.net neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made in the Materials by anyone other than authorized FlexDen.net employee spokespersons while acting in their official capacities. Neither FlexDen.net nor any Service Provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. When you access the websites of the Service Providers or other third party sites through the FlexDen Marketplace , you should review the applicable terms and policies, including privacy and data-gathering practices, of that website.
Under no circumstances will FlexDen.net be liable for any loss or damage caused by a User's reliance on information obtained through the FlexDen Marketplace and/or in the Materials. It is the responsibility of User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the FlexDen Marketplace and/or in the Materials. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content.
11. Copyright Agent for Copyright Infringement Claims (Digital Millennium Copyright Act).
FlexDen.net respects the rights of all copyright holders and in this regard, FlexDen.net has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the FlexDen Marketplace who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide FlexDen.net’s Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyright work claimed to have been infringed or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
12. Additional Terms.
This Agreement and Privacy Policy included as part of the FlexDen Marketplace and any operating rules established by FlexDen.net (all hereby incorporated by reference) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the States of HI,MA,VT without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The provisions herein are for the benefit of FlexDen.net and its affiliates, which shall have the right to assert and enforce such provisions directly. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein.
