Terms of Use Agreement

Last Modified: November 25, 2009

PLEASE READ THESE TERMS OF USE CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS
 
Introduction/About Social Project, Inc. and the Community Sites
Eligibility
Registration and Security
Proprietary Rights in Flux; Limited License
User Content Posted on Flux-powered Community Sites
Rules of Conduct
Advertising, Malware
Contests, Sweepstakes, Auctions, Promotions
Third-Party Sites
Fees and Charges
Deactivation or Termination of Your Flux Account
Member Interactions; Disputes
Your Guarantees
Disclaimers; Limitation on Liability
Indemnity
Governing Law; Jurisdiction and Venue; Other Terms
 

INTRODUCTION/ABOUT SOCIAL PROJECT, INC. AND THE COMMUNITY SITES

This is the official Terms of Use Agreement ("Agreement") for the Flux platform ("Flux," "we," "us," or "our"), an online social-networking and social-media service, and the Flux web sites located at www.Flux.com and www.socialproject.com ("Flux Sites"). Flux and Flux Sites are offered by Social Project, Inc. ("Social Project"). Social Project is an MTV Networks ("MTVN") company. MTVN is a division of Viacom International Inc. (together with MTVN, the "Parent Companies.")

Using Flux, we also may power and host certain parts of web sites owned by the Parent Companies or third parties ("Third Party Sites"). Flux Sites and Third Party Sites make up a community of social-networking web sites that we refer to here as the "Community Sites." The Community Sites, using Flux, allow registered users ("Members") to create personal profiles online, display content, share information and comments, and establish a network of relationships – all within one Community Site or across multiple Community Sites.

These terms and conditions constitute a legally binding agreement between you and Social Project, Flux and the Parent Companies. By using Flux and any Community Sites, you agree to abide by this Agreement and any additional terms that govern certain products or services offered on or through Flux, such as award programs, membership clubs and e-mail, and that will be presented with those products or services ("Additional Terms"). We also may provide rules of participation ("Rules") for certain activities and services including, but not limited to, contests and sweepstakes, award programs, membership clubs, and e-mail. Our Privacy Policy, the Additional Terms and Rules are hereby incorporated in this Agreement by reference. This Agreement applies whether you are Flux or Community Sites via a personal computer, a mobile device or any other technology or devices now known or hereafter developed or discovered (each, a "Device") and whether you are accessing as a Member or other user. To the extent there is a conflict between this Agreement and any Additional Terms, the Additional Terms will govern unless they expressly state otherwise. Your use of a Community Site may also be governed by that Community Site's own terms and conditions, if any ("Third Party Terms"). To the extent there is any conflict between this Agreement and any Third Party Terms, this Agreement will govern.

The words "use" or "using" in this Agreement, means any time a Member or other user, directly or indirectly, with or without the aid of a machine or Device, does or attempts to access, interact with, use, display, view, print or copy from Flux or any Community Sites, transmit, receive or exchange data or communicate with Flux or any Community Sites, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of Flux or any Community Sites, for any purpose whatsoever.

We reserve the right, at our sole discretion, to change portions of this Agreement at any time without further notice. If we do this, we will post or display notice of material changes on Flux Sites and/or contact you; the form of notice is at our discretion. Once we provide notice, the changes become effective immediately and your continued use will signify your agreement to be bound by the changes. If you do not agree to this or any future Agreement, you may not use Flux or Flux Sites. The Agreement governs only Flux-related content, features and activities. Unless we say so, this Agreement does not govern any third-party content, any non-Flux powered portions of Community Sites, or any links that may direct you to Outside Sites (third-party sites as defined below).

  1.  ELIGIBILITY

Flux and Flux Sites are offered and made available only to users 13 years or older and certain features (including, but not limited to, registration and newsletter signups) may be subject to heightened age and/or other eligibility requirements. If you are between 13 and 17 or under the age of majority where you live, before you use Flux or Flux Sites please review this Agreement with your parents or guardians. Until you reach the age of majority where you live, you certify that your parents or guardians have consented to your use, they have agreed to this Agreement on your behalf, and you agree to provide them with your current registration e-mail address and password at all times. You understand that your parents or guardians may ask us to modify or terminate your use or access, and we may do so at their request or for any other reason, at any time, without notice or responsibility to anyone. By your use, you certify that you are at least 13 years of age or the required greater age for certain features and meet any other eligibility requirements. If you are not yet 13 years old or the required greater age for certain features and/or do not meet other eligibility requirements, please discontinue using Flux and Flux Sites immediately and do not send any information about yourself. If we discover that a user under age 13 has provided us with Personal Information (defined below), we will delete it.

Flux and Flux Sites are established in the United States, meaning that you are accessing a community network in the U.S. Flux and Flux Sites are governed by and operated in accordance with the laws of the U.S. Social Project and the Parent Companies make no representation that Flux or Flux Sites are governed by or operated in accordance with the laws of other nations. Please be aware that any Personal Information you provide to us or we obtain as a result of your use of Flux or Community Sites will be collected in the U.S. or transferred to the U.S. by or on behalf of the Community Sites. By using or participating in Flux or Community Sites and/or providing us with your Personal Information or other information, you (a) consent to the transfer, processing and/or storage of any Personal Information and other information you provide to Flux and/or the Community Sites, (b) acknowledge that U.S. law provides a lower standard of protection for personal data than the laws of various countries including, but not limited to, the European Union and (c) understand that Flux and Flux Sites will collect, transfer to, process and/or store and deal with your Personal Information and other information in accordance with our Privacy Policy and U.S. law. Consequently, you waive any claims that may arise under the laws and regulations that apply to you in or of any other country or jurisdiction.

  1.  REGISTRATION AND SECURITY

By signing up to become a Member of a Community Site, you register both with Flux and the Community Site. Please read our Privacy Policy, which describes how we may use the personally identifiable information ("Personal Information") we collect, including, for example, sharing such Personal Information with the Community Sites that you join. Your Community Sites’ use of such shared information is governed by their own privacy policies, so you should carefully read the separate policies of each Community Site that you join.

To register with Flux and a Community Site, you must provide a valid e-mail address and password (together, your "User ID"), as well as certain other information. You may provide only true, complete and current information about you. Your User ID gives you access to your Flux account and Flux-powered features of Community Sites that you join. You may not allow anyone else to access or use your Flux account or User ID. You are responsible for all activities that occur under your Flux account or User ID. If you are between 13 and 17 or under the age of majority where you live, you must provide your parents or legal guardians with your current User ID at all times. You may not disclose your User ID to anyone else. You agree to immediately notify us if you believe there may be any unauthorized access or use of your Flux account or User ID, or any other security concern. You may not sell, assign or transfer your Flux account or User ID.

When you join a Community Site, you must select a display name, which will be displayed next to your profile picture within the Community Site. Display names are not exclusive, users may choose the same or similar display names. You may change your display name. When you join a Community Site, you may also select an exclusive Profile URL ('permalink' domain address) to associate with your profile. (Selecting a Profile URL may be required for some Community Sites.) If you do not select a Profile URL, your profile will be unaffected except that it will have a random web address. When logged-in, you may manage your display name and Profile URL in the “More” or “My Pages” dropdown menu, by selecting "Account" (or “My Account”). We reserve the right, in our sole discretion, to modify or delete your display name and/or Profile URL at any time, without notice or responsibility to anyone.

  1.  PROPRIETARY RIGHTS IN FLUX; LIMITED LICENSE

Flux and Flux Sites, including, but not limited to, software, applications, databases, information, organization, text, graphics, look and feel, advertising copy and other intellectual property, are the proprietary property of us or our licensors, with all rights reserved. Provided that you meet our eligibility requirements and comply with this Agreement, we grant you a limited license to access and use Flux and Flux Sites. This limited license is non-exclusive, for your personal non-commercial use only, non-sublicensable, non-transferable and revocable at any time without notice for any reason. Except as expressly granted in this Agreement, you may not upload, download, display, distribute, copy, modify, create derivative works from, store, sell, transfer or use Flux or Flux Sites, or allow others to do so without our express consent. You must abide by, and not remove or interfere with, any proprietary notices, information or restrictions on Flux, Flux Sites or content available therein (other than your own User Content). Unless expressly stated herein, nothing in this Agreement may be construed as granting any license to intellectual property rights. Nothing in this Agreement may be construed as granting any rights of ownership in Flux or Flux Sites. Flux and Flux Sites are protected under United States federal and state laws and regulations, as well as applicable foreign laws, regulations and treaties, and any unauthorized use may subject you to civil liability, criminal prosecution or both.

FLUX, FSHARE, SOCIAL PROJECT, and other Flux logos, designs, graphics, icons and service names are registered marks, marks or trade dress of us and/or the Parent Companies in the United States and/or other countries, and may not be used without the express consent of us and/or the Parent Companies.

  1.  USER CONTENT POSTED ON FLUX-POWERED COMMUNITY SITES

a.      CONTENT STANDARDS; MONITORING

As a Member, you may submit, post and make available materials on or through Flux and the Community Sites, including, for example, photos, images, sound recordings, video recordings, audio-visual works, musical works, writings and other files, derivative works, translations, adaptations or variations of these materials, accompanying metadata or other documentation or descriptive information, and all tags and comments associated with the materials, whether associated by you, other Members or users, us, or anyone else (collectively, "User Content"). You agree not to submit, and we may reject, remove, or otherwise handle as we deem appropriate any improper User Content, including, for example, User Content that, in our sole discretion:

  • violates or infringes the rights of anyone else, including, for example, other people's copyright or right to privacy;
  • is unlawful, threatening, bullying, harassing, exploitative, violent, offensive, hateful, defamatory, obscene, sexually suggestive or explicit, indecent or otherwise harmful, or that may impair other people's use or enjoyment of Flux or Community Sites;
  • includes Personal Information about another person, without that person’s express consent;
  • is fraudulent, false or misleading;
  • is commercial in nature, including, for example, advertising, promotional or marketing materials, or spam, phishing or other unsolicited messages;
  • contains computer viruses or other disruptive, damaging or harmful files or programs;
  • tries to gain unauthorized access to Flux or Community Sites, connected computers, Devices or networks, or user data, or that otherwise modifies or interferes with the use or operation of Flux or Community Sites;
  • constitutes, endorses or solicits criminal activity, or is posted for an illegal purpose; or
  • otherwise violates this Agreement, any Additional Terms, or any applicable law or regulation.

If you become aware of any Member profile, User Content or other material on Flux or Community Sites that appears to violate this Terms of Use Agreement (for example, by containing adult material, hate speech, spam or phishing materials), please report it to us for review by clicking the associated “Flag” icon. If you believe User Content or other material infringes your copyrights in your work, please follow the procedures in our Copyright Compliance Policy.

We have no responsibility for User Content. We do not guarantee the truthfulness, accuracy or reliability of User Content, nor do we endorse or support any views or opinions expressed in User Content. You are solely responsible for your own User Content, including, for example, any communications and submissions made under your Flux account. Always keep a copy of anything you submit because we are not responsible for lost or damaged User Content. Proof that you submitted User Content is not proof that we received anything.

We do not control any User Content submitted. However, we reserve the right (without limiting our other rights) to monitor Flux and Community Sites at any time, without notice or responsibility to anyone. If we determine, in our sole discretion, that any of your User Content violates this Agreement or is unacceptable to us for any other reason, we may: (a) reject, edit, reformat or remove the User Content; (b) refuse to allow you to submit other User Content; and/or (c) terminate your access or use of Flux and/or Community Sites. We disclaim all responsibility related to any monitoring, modification or removal of User Content or any failure to do so.

To protect our Members and partners from unauthorized advertising or solicitation, we reserve all rights, including, for example, to restrict the number of communications sent on or through Flux. If you are responsible for unsolicited communications in violation of this Agreement, you acknowledge that you will have caused us substantial harm, the amount of which would be extremely difficult to determine. As a reasonable estimate of such harm, you agree to pay us Fifty Dollars (US $50.00) for each such unsolicited communication.

If we receive notice of any claim of infringement that satisfies certain legal requirements, such as notice and takedown requirements under U.S. copyright law, we may remove User Content associated with the claim. We reserve the right to provide information to law enforcement officials, government agencies and pursuant to judicial or regulatory compulsion, in order to protect the rights, interests or safety of our Members or users, us, the Parent Companies or public, or in order to comply with legal, regulatory, audit or compliance obligations.

We require others to respect our copyrights, trademarks and other intellectual property rights. Likewise, we respect others' intellectual property rights. If you believe any User Content or other material on Flux or Community Sites infringes your copyrights in your work, please follow the procedures in our Copyright Compliance Policy.

b.      YOUR PROPRIETARY RIGHTS IN USER CONTENT

We do not acquire ownership rights in User Content that you submit on or through Flux. We are acting only as a host, bulletin board or conduit for submitted User Content, with all the specific rights granted by you in this Agreement. After submitting User Content, you maintain any ownership and use rights that you may have in that User Content, subject to the consents, rights and licenses granted to us in this Agreement (below).

You must own or have the rights to the User Content you submit, and you must own or have the rights to grant all consents, rights and licenses described in this Agreement. If you do not exclusively own these rights, you must have all necessary consents, rights and licenses to enter into and comply with this Agreement. Upon our request, you will provide us with any required documentation to verify your compliance with this Agreement.

You agree and promise that:

  • all information you provide associated with your User Content is true, complete and current;
  • your submission and use of User Content does not violate: (i) this Agreement, (ii) any law or regulation, or (iii) any intellectual property, privacy, publicity or other rights of any person or organization;
  • we will not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of your User Content; and
  • the submission and use of your User Content is not subject to any guild or union collective bargaining agreement; and you understand we are not signatory to any such agreement and we are not responsible for providing guild or residual payments in connection with such submission and use.

For any User Content that contains original videos, you agree to comply with any identification (ID) verification and record-keeping practices required by law or by us, including, for example, for individuals appearing in the videos: (a) their full name, address and date of birth; and (b) a legible photocopy of their valid government-issued ID. With the submission of such User Content, you may be required to provide us with a copy of these records and your own valid government-issued ID, and comply with our other requests in connection with the User Content. You acknowledge that other persons may have developed, submitted to us, or made public User Content that is similar or identical to your User Content. You understand you will not be entitled to compensation because of the use or exploitation of User Content, and its submission, posting or display is not any admission of novelty, priority or originality.

c.      OUR LICENSE IN USER CONTENT

By submitting User Content on or through Flux, you grant us and the Parent Companies a worldwide, perpetual license to host, reproduce, publicly display, publicly perform, distribute, broadcast, modify, reformat, translate or use the User Content on Flux, the Community Sites and any other channels, services and other platforms of us or the Parent Companies, whether currently existing or not yet developed (collectively, the "Channels"). By submitting User Content on or through Flux, you also grant us and the Parent Companies a worldwide, perpetual, fully-paid and royalty-free, non-exclusive and sub-licensable license to use and refer to your name, logo, marks, image or other distinctive identification in marketing, promotional and business materials in connection with the Channels. This license is fully-paid and royalty-free (meaning we and the Parent Companies need not pay or account to you for the license), non-exclusive (meaning you may also license your User Content to others), and sub-licensable (meaning we and the Parent Companies may use our affiliates and contractors, such as network providers, to provide the Flux service). The licenses granted to us and the Parent Companies will begin immediately upon submission of User Content and continue indefinitely, unless and until terminated by us. Nonetheless, you acknowledge that we need not accept, host, display, or use any submitted User Content (or take advantage of any particular licenses or rights granted or available to us) and we may, in our sole discretion, remove or refuse to use or do anything at all regarding User Content. You also acknowledge that neither User Content nor any associated commercial material need be submitted for approval before use.

As between us, the Parent Companies and you, we and the Parent Companies reserve the exclusive right to sell advertising and otherwise exploit and benefit from the conduct of our business and operating Flux, any Community Sites or other Channels and any related arrangements, without accounting, obligation or other responsibility to you, regardless of any use of User Content.

We and the Parent Companies have the right to license, authorize and otherwise arrange with third parties to do or perform any activities, exercise any rights and undertake any responsibilities granted or imposed under this Agreement, and each such third party will be entitled to all terms and conditions, rights and licenses granted to us and/or the Parent Companies under this Agreement.

You release us and the Parent Companies from any claims demands or actions in connection with User Content, including, but not limited to, responsibility for any use or nonuse of User Content and claims for defamation, violation of the rights of privacy or publicity, emotional distress or economic loss. We and the Parent Companies may assign or otherwise transfer, sub-contract or delegate to or engage third parties to perform or benefit from its/their rights or obligations to other parties, without any accounting, reporting, notice or other responsibility to you. You also forever waive all moral rights (or 'droit moral') recognized in connection with User Content and any rights granted under this Agreement.

  1.  RULES OF CONDUCT

You agree not to use, or knowingly condone others using, Flux or Community Sites:

  • to transmit, upload or make available User Content or other material that is defamatory, hateful, pornographic, obscene, menacing, offensive or harmful, that could cause undue annoyance, inconvenience or anxiety to anyone else, or that otherwise violates this Agreement;
  • as a means to threaten, stalk, harass, bully, abuse, exploit, insult or otherwise harm anyone else;
  • in a way that violates or infringes the rights of anyone else, including, for example, other people’s copyright or right to privacy;
  • to transmit, upload or make available unsolicited or unauthorized advertising or promotional materials, for example, junk mail, "spam," chain letters, pyramid schemes or similar materials;
  • to disclose Personal Information of you or anyone else, including, for example, on a Member profile or Community Site;
  • to collect Personal Information about other Members or users, including, for example, by spamming or phishing;
  • to create a false identity that misleads others about the sender or origin of a message, for example, you must not impersonate anyone else;
  • to transmit, upload or make available any material that would amount to a breach of this Agreement if you had posted it directly, or that contains any virus or other harmful file or program, or that may otherwise harm our online services or our computer systems or any third-party computer system;
  • in any way that could cause our or another user's services, hardware or networks to be interrupted, damaged or rendered less efficient;
  • to cover, obscure or interfere with any advertisement on Flux or Community Sites;
  • by any unauthorized means;
  • for any unlawful purpose; or
  • in any other way that violates this Agreement or that could reasonably be expected to affect us adversely or reflect negatively on our goodwill, name or reputation.

If you become aware of misconduct on Flux or Community Sites (for example, cyberbullying, harassment or other improper or criminal activity), please report it to us by accessing the “More” or “My Pages” dropdown menu and selecting “Report Abuse”. “Report Abuse” is also available by clicking the “Flag” icon associated with a Member profile or User Content. You may also contact us at legal@flux.com.

You are solely responsible for your use, including, but not limited to, all conduct that occurs in your Flux account or under your User ID. The information and materials on Flux and Community Sites are provided solely for your personal and private use and must not be used for any business or commercial purpose without our express consent. For example, you may not copy, transmit or reverse-engineer anything available on Flux or Community Sites, or use framing techniques to enclose any part of Flux or Community Sites, without our express consent. Unless we specifically indicate otherwise, you also may not modify information or materials available on Flux or Community Sites by making a “mash-up”, derivative work or otherwise. Your use of Flux and Community Sites is subject to all applicable laws, regulations and treaties.

  1.  ADVERTISING, MALWARE

From time to time, as a result of your use of Flux or the Community Sites, you may communicate with, interact with, be re-directed to, or obtain or use goods and services of third parties such as our advertisers, sponsors or promotional partners (collectively, "Advertisers"). All such communication, interaction and use is solely between you and Advertisers. We are not responsible for these activities or transactions, including, but not limited to, any contracts, promises, representations, warranties or other terms or conditions that may exist between you and any Advertiser, or any goods or services you may buy or obtain from any Advertiser.

We take great care and pride in creating Flux and we are always on the lookout for technical glitches that effect how it works. When we find any on our end, we will fix them. Unfortunately, your Device may cause some glitches that affect how you experience Flux and that is beyond our control. If you experience any unusual behavior, content or ads, it may be the result of Malware on your Device. Malware (malicious software) is software installed on a computer system with malicious intentions, usually without the owner's knowledge or permission. Malware includes, but is not limited to, computer viruses, key loggers, malicious active content, rogue programs and dialers. While we continuously work closely with our partners to ensure that everything on Flux is working properly, sometimes Malware may interfere with your experience on Flux, Flux Sites and other sites or services that you visit. We suggest that you take some of the following actions, which may help to clean your Device and which could prevent future installations of Malware:

Please note that we cannot be responsible for the effects of any third-party software including, but not limited to, Malware on your Device or system. Please carefully read the Help or Customer Support areas of any software download site. If you do discover any Malware on your Device or system, we also suggest you speak with a qualified computer technician. If, after taking the above actions, you are still experiencing any problems, please feel free to contact us.

  1.  CONTESTS, SWEEPSTAKES, AUCTIONS, PROMOTIONS

From time to time, we or our service providers, licensees, suppliers or Advertisers may conduct promotions on or through Flux or Community Sites, including, but not limited to, auctions, contests or sweepstakes ("Promotions"). Each Promotion may have Additional Terms, which will be posted or otherwise made available to you, and for purposes of each Promotion, will be deemed incorporated into this Agreement. It is your responsibility to read and abide by the Additional Terms.

  1.  THIRD-PARTY SITES

We and the Parent Companies are not responsible for links to third-party sites ("Outside Sites") that are made available, or that you use, on or in connection with Flux or Community Sites. We do not verify, endorse or have any responsibility for Outside Sites, their business or privacy practices, or any associated goods or services. If an Outside Site obtains or collects Personal Information from you, we are not responsible. Therefore, always use your own best judgment when dealing with an Outside Site.

  1.  FEES AND CHARGES

By using Flux or Community Sites, you acknowledge that we have the right to charge for our products and services, and to terminate your access and/or use if you fail to pay as required.

  1.  DEACTIVATION OR TERMINATION OF YOUR FLUX ACCOUNT

You may deactivate your Flux account at any time and for any reason, by accessing the “More” or “My Pages” dropdown menu, clicking "Account" (or “My Account”) to edit your Flux account, and then clicking "Deactivate My Account" and following the posted instructions. We also may terminate or restrict your Flux account at any time, for any reason and without responsibility.

  1.  MEMBER INTERACTIONS; DISPUTES

Your interactions, communications and transactions (online or offline) with any other Member, user, Advertiser, Outside Site or other organization that you find on or through Flux or the Community Sites are solely between you and them, and are your sole responsibility. We reserve the right, but have no responsibility, to monitor or become involved in disputes between you and such other Members, users or organizations. If you have such a dispute, you release us, the Parent Companies and our respective officers, directors, employees, agents, subsidiaries, affiliates, licensors, licensees, operational service providers, Advertisers and suppliers (collectively, "Released Parties") from all claims, demands and damages actual and consequential, know or unknown, arising from or related to the dispute.

  1.  YOUR GUARANTEES

You guarantee that: (a) you have the legal right and ability to enter into and comply with this Agreement, or if you are between 13 and 17 or under the age of majority where you live, your parents or legal guardians have agreed to this Agreement on your behalf; (b) all information you provide to us is accurate, complete and current; (c) you own or have all rights necessary to perform under this Agreement; and (d) your activities are lawful in any jurisdiction where you use Flux or Community Sites.

  1.  DISCLAIMERS, LIMITATION ON LIABILITY

FLUX, THE COMMUNITY SITES, ALL USER CONTENT AND ALL MATERIALS, SERVICES, PRODUCTS AND SOFTWARE USED OR MADE AVAILABLE ON OR THROUGH FLUX (COLLECTIVELY, "FLUX ITEMS") ARE PROVIDED STRICTLY 'AS IS.' YOU USE FLUX ITEMS AT YOUR SOLE RISK AND WE DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES. WE DO NOT GUARANTEE FLUX ITEMS OR SECURITY ASSOCIATED WITH TRANSMITTING PERSONAL INFORMATION THROUGH FLUX ITEMS, THAT FLUX ITEMS WILL OTHERWISE FUNCTION OR PERFORM IN ANY PARTICULAR MANNER, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT FLUX ITEMS (OR SERVERS, NETWORKS OR SERVICES THAT MAKE THEM AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT GUARANTEE THAT YOUR USE OF FLUX ITEMS IS LAWFUL IN ANY PARTICULAR JURISDICTION. IF YOU ARE DISSATISFIED WITH FLUX ITEMS, THIS AGREEMENT OR ANY ADDITIONAL TERMS, YOUR ONLY REMEDY IS TO STOP USING FLUX ITEMS.

Because of service capacity limits, some messages and transmissions may not be processed promptly or at all, and some features or functions may be restricted, delayed or become inoperable. The Released Parties are not responsible for any service failure or delay, so you should not rely on Flux Items for any particular transactions, communications or User Content. Further, the Released Parties are not responsible for any malicious code, delays, inaccuracies, errors, or omissions arising from your use of Flux Items. The Released Parties are not responsible for any problem, malfunction, delay, damage to or failure of the Internet or any hardware, software, system or service, whether resulting from, for example, any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay, computer line or network failure, technical problems, traffic congestion on the Internet and/or at any web site, or any other reason. The Released Parties are not responsible for any delay or failure in performance resulting from acts of nature, forces or causes beyond the Released Parties’ reasonable control.

TO THE EXTENT PERMITTED BY LAW, THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR ANY LOSS, INJURY OR DAMAGES OF ANY KIND (WHETHER AS A RESULT OF CONTRACT LAW, TORT, STATUTORY DUTY OR OTHERWISE, AND EVEN IF FORESEEABLE OR IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATED TO: (I) FLUX ITEMS; (II) THE USE, PERFORMANCE OR OPERATION OF FLUX ITEMS; (III) ANY INVESTIGATION BY US, LAW ENFORCEMENT OR GOVERNMENT AUTHORITIES REGARDING ANY USE OF FLUX ITEMS; (IV) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; AND (V) ANY INTERACTION, COMMUNICATION OR TRANSACTION WITH, OR ANY CONDUCT OF, ANY MEMBER, USER OR ORGANIZATION FOUND ON OR THROUGH FLUX ITEMS. THE RELEASED PARTIES WILL NOT BE RESPONSIBLE FOR ANY LOSS OR INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NONETHELESS, IN NO EVENT WILL THE RELEASED PARTIES' TOTAL RESPONSIBILITY TO YOU FOR ALL DAMAGES, LOSSES, INJURIES OR CLAIMS EXCEED ONE HUNDRED DOLLARS (US $100.00).

YOU CONFIRM THAT, IF YOU INCUR ANY DAMAGES, LOSSES OR INJURIES ARISING FROM OR RELATED TO ACTS OR OMISSIONS OF THE RELEASED PARTIES, THE DAMAGES ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF FLUX ITEMS OR ANY OTHER WEB SITE OR CONTENT OWNED OR CONTROLLED BY THE RELEASED PARTIES.

By accessing or using Flux Items, you understand that you may be waiving rights with respect to unknown or unsuspected claims, and you acknowledge that you have read and understand, and expressly waive, the benefits of California Civil Code Section 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."

  1.  INDEMNITY

You agree to indemnify, defend and hold the Released Parties harmless from and against all claims, actions, losses, expenses, damages and costs (including reasonable attorneys' fees) arising from or related to: (i) your use of Flux Items; (ii) any violation of this Agreement or applicable law, rule or regulation; (iii) your submission, transmission, display, distribution, reproduction, modification, creation of derivative works, storage, sale, transfer or other use of User Content or other materials; or (iv) any theft, disclosure, sharing or other misuse of your User ID or Flux account. The Released Parties reserve the right to assume, at their sole expense, the exclusive defense and control of any such claim or action and all settlement negotiations. You agree to fully cooperate with the defense or settlement negotiations, as requested by the Released Parties. You agree not to settle any claim or action without the Released Parties' express approval.

  1.  GOVERNING LAW; JURISDICTION AND VENUE; OTHER TERMS

This Agreement and your use of Flux Items are governed by the laws of the State of New York (notwithstanding any conflict of laws provisions) applicable to contracts made, executed and wholly performed in New York. For the purposes of any legal or equitable claims or actions, you agree and will not object to the exclusive and mandatory jurisdiction and venue of the State and Federal courts situated in the State and County of New York and agree you will not object to such jurisdiction or venue on the grounds of lack of personal jurisdiction, forum non conveniens or otherwise. To the extent it may be applicable, you agree to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act. IN ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE THIS AGREEMENT OR RELATED TO FLUX ITEMS, YOU WAIVE ANY RIGHT TO A TRIAL BY JURY.

This Agreement, together with our Privacy Policy, any Additional Terms, Rules and other procedures and policies that are incorporated here by reference, contains the entire agreement between you and us relating to your use of Flux Items and Channels and supersedes any and all prior or inconsistent understandings.

This Agreement will remain in effect while you are a Member or user of Flux Items. Nonetheless, any provision that must survive in order to allow us to enforce its meaning (including, but not limited to, indemnifications, warranties and limitations of liability) will survive the termination of this Agreement; but no claim arising out of this Agreement or your use of Flux Items may be brought by you more than one year after the claim has arisen. Any failure of us to enforce any provision of this Agreement will not constitute a waiver. If any provision of this Agreement is held invalid or unenforceable, this will not affect any other provisions and the Agreement will be amended as necessary to make it valid and enforceable. No agency, partnership, joint venture, employment or franchise relationship is intended or created by this Agreement. Except as expressly provided herein, there are no third-party beneficiaries to this Agreement. Any section headings in this Agreement are for convenience only and have no legal effect.

To the extent that Flux-related software is subject to U.S. export controls, it may not be downloaded from us or otherwise exported: (A) into, or to a national or resident of, any country to which the U.S. has embargoed goods; or (B) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using Flux-related software, you confirm that you are not located in any such country, you are not a national or resident of any such country (or under their control) and you are not on any such list.

You understand and agree that we will determine your compliance with this Agreement in our sole discretion. We reserve the right to deny access to any Flux Items in our sole discretion, at any time, without notice or responsibility to you or anyone. Any violation of this Agreement may be referred to law enforcement authorities.

This Terms of Use Agreement was last modified on the date indicated above and is effective immediately.

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