Description of the Service; Disclaimers and Releases
The key functionality of Flogg is to provide a social marketplace where users can (i) advertise products for sale as a selling user (each a “Selling User”) and make offers to buy products from other users as a buying user (each a “Buying User”), (ii) share your user information with other users, including without limitation, your profile picture, Listing Information and other images, photos, messages, data and personal information, (iii) interact with other users, including without limitation, giving other users the ability to see your Facebook mutual friends, searching other users by name, direct messaging other users, and (iv) share product offers in other platforms or social networks other than Flogg (collectively, the “Service”).
PLEASE NOTE THAT FLOGG IS SIMPLY A PLATFORM THAT BRINGS TOGETHER BUYERS AND SELLERS OF PRODUCTS. FLOGG IS NOT THE OWNER OF THE PRODUCTS BEING SOLD, HAS NO CONTROL OF SUCH PRODUCTS, AND IS NOT A PARTY TO THE TRANSACTION OF THE SALE. FLOGG DOES NOT ASSUME ANY RESPONSIBILITY FOR OR WARRANT THE PRODUCTS SOLD BY USING THE APP AND/OR THE SERVICE. THE PURCHASE AND SALE TRANSACTION TAKES PLACES AND IS DECIDED EXCLUSIVELY BETWEEN THE BUYING USER AND THE SELLING USER, AND FLOGG ONLY PROVIDES THE USE OF THE APP AND THE SERVICE. FURTHERMORE, FLOGG DOES NOT AND HAS NO OBLIGATION TO REVIEW THE PRODUCTS THAT SELLING USERS PROVIDE THROUGH THE APP AND THE SERVICE AND, THEREFORE, FLOGG WILL NOT BE RESPONSIBLE, EITHER DIRECTLY OR INDIRECTLY, FOR ANY DISAGREEMENTS BETWEEN SELLING USERS AND BUYING USERS. ALL LISTING INFORMATION (AS DEFINED BELOW) AND OTHER INFORMATION OF ANY KIND REGARDING THE PRODUCTS THAT IS PUBLISHED ON THE APP OR THROUGH THE SERVICE HAS BEEN CREATED AND PUBLISHED BY THE USER THAT IS SELLING THE PRODUCT. CONSEQUENTLY, FLOGG CANNOT AND DOES NOT GUARANTEE THE QUALITY OF THE SAME OR THE VERACITY OR ACCURACY OF ANY IMAGES AND/OR DESCRIPTIONS OF SUCH PRODUCTS PUBLISHED BY SUCH SELLING USER. ANY CLAIM OR DISPUTE THAT MAY ARISE BETWEEN USERS OF THE APP AND/OR THE SERVICE SHALL BE SETTLED BY THEM, AND THEY HEREBY AGREE TO RELEASE AND HOLD HARMLESS FLOGG FROM ANY LIABILITY OR RESPONSIBILITY TO PARTICIPATE IN SUCH CLAIM OR DISPUTE.
Your Registration Obligations
The App and the Service are only accessible to registered users who login with Facebook. [Notwithstanding the foregoing, you may visit some areas of the App as a guest and remain anonymous, but you may not be able to access all the content and features of those areas without registering.] If you register and access the App or use the Service, you expressly accept and agree to be bound by this Agreement and the terms, conditions and notices contained or referenced herein. Use of the App and the Service, and the registration and creation of a Flogg account, is available only to individuals who are at least 13 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. You hereby warrant that you are at least 13 years old. In the event that the information you provide in this regard is not truthful, Flogg shall not be liable as it cannot verify the age of its users. If you are under 13 years old, do not attempt to register or use the App or the Service.
You may not (i) select or use as a Flogg User ID a name of another person with the intent to impersonate that person; (ii) use as a Flogg User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as Flogg User ID a name that is vulgar, obscene or otherwise offensive. We reserve the right to refuse registration of, or cancel a Flogg User ID at our discretion. If you select a User ID for your account we reserve the right to remove or reclaim it if we believe it infringes upon another’s rights or marks. You are responsible for all activities occurring under your Flogg User ID and for keeping your password confidential and secure, and you agree to immediately notify us of any unauthorized use of your Flogg User ID or password.
While there are limited, legitimate reasons for creating multiple accounts, creating serial or overlapping accounts may result in account termination. Please contact us if you have questions about managing multiple accounts.
Ownership and Standards of User Contributed Content
Using the Service includes creating or uploading different kinds of listing information for products that you are offering for sale to other users, including without limitation, photos of items, titles, descriptions and price (collectively, “Listing Information”). Listing Information for products and any other content that you create or upload via the App or the Service, including without limitation, photos, text, messages, posts, URLs, pictures, video and other content (collectively, “User Contributed Content”), whether publicly posted or privately transmitted, is the sole responsibility of the Flogg user from whom such User Contributed Content originated. Without limiting the foregoing, you are solely and entirely responsible for all of the User Contributed Content that you upload, post, email, transmit or otherwise make available via the App or the Service. We may, but are not obligated to, monitor or control User Contributed Content that is posted, and we take no responsibility for such content.
Furthermore, any User Contributed Content or other material you upload to via the App or the Service will be considered non-confidential and non-proprietary. We have the right to disclose your identity to any third party who claims that any of the material uploaded/posted by you via the App or the Service constitutes a violation of their intellectual property rights, their rights to privacy or any other proprietary right.
In using the App or the Service, you agree not to generate or upload any User Contributed Content that is (1) inappropriate to other users or illegal, including, but not limited to, anything that is defamatory, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, hateful, or promotes violence, discrimination, bigotry, racism, or hatred, as determined by Flogg in its sole discretion, or (2) introduce viruses, time-bombs, worms, cancelbots, Trojan horses and/or other harmful code.
We do not endorse, support, represent or guarantee the truthfulness, accuracy, or reliability of any User Contributed Content or endorse any of the opinions expressed therein. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto. You acknowledge that any reliance on User Contributed Content of any Flogg user will be at your own risk.
While we are very appreciative of the User Contributed Content you will provide, we do not compensate Flogg users for such content creation.
You understand that by using or accessing the App or the Service you may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate material, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will we be liable in any way for any content or communications, including, but not limited to, any errors or omissions in any form of User Contributed Content, including without limitation any Listing Information, or any loss or damage of any kind incurred as a result of the use of any Flogg Content or User Contributed Content posted, emailed, transmitted or otherwise made available on the App or through the Service.
Digital Millennium Copyright Act; Procedure for Making Claims of Infringement
You agree to only upload, post, submit or otherwise transmit User Contributed Content: (i) that you have the lawful right to use, copy, distribute, transmit, or display; and (ii) that does not infringe the intellectual property rights or violate the privacy rights of any third party (including, without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Flogg respects the legal rights of others, and asks that its users do the same. It is Flogg’s policy to respond to notices of alleged copyright or other forms of intellectual property infringement provided they comply with applicable laws (most notably, the United States’ Digital Millennium Copyright Act or “DMCA”). Repeat offenders will, at Flogg’s option, have their user accounts and/or access to the App and the Service removed or disabled irrespective of the status of any particular notification or counter-notification. If you believe that your intellectual property rights have been infringed, please provide Flogg with written notice of same with the following information:
While we are very appreciative of the User Contributed Content you will provide, we do not compensate Flogg users for such content creation. The full name, mailing address, telephone number, contact email address and physical or electronic signature of an owner of an exclusive right that is allegedly infringed, or a person or entity specifically authorized to act on that owner’s behalf;
Identification of the works claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works;
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 Flogg to locate said material;
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 rights holder, his/her/its agent, or the law;
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; and
Any supporting documentation to help establish the rights at issue, such as copies of a valid and duly executed copyright registration certificate.
Notices should be delivered to Flogg’s Agent for Notices of Infringement Claims:
Flogg will, upon receipt of a properly-formatted notice, act expeditiously to remove the allegedly offending content or disable public access to same. Flogg will also send a copy of any infringement notice to the party said to be responsible for the infringement at issue. If you have received such a notice, you may opt to file a counter-notice, stating essentially that you dispute the allegations made in the notice and formally requesting that any material removed or disabled be reposted. A counter-notification should include the following information:
The full name, address, telephone number, contact email address and physical or electronic signature of the party named in the infringement notice, or a person or entity specifically authorized to act on his/her/its behalf.
Identification of the material(s) claimed to have been removed or disabled by Flogg, and information reasonably sufficient to permit the service provider to determine its prior location;
A statement that the party making the counter-notice has a good faith belief that use of the material in the manner complained of is not authorized by the rights holder, his/her/its agent, or the law;
A statement that the information in the counter-notification is accurate, and under penalty of perjury, that the materials removed were removed or disabled as a result of misidentification or wrongful allegation;
A statement that you will accept jurisdiction for disputes relating to this matter in either: (i) the Federal District Court in the district that you reside; or (ii) if you reside outside of the U.S.A., in the Southern District of New York.
Any supporting documentation to help establish the statements contained in your counter-notification.
Your Property Rights and the Licenses You Grant to Flogg
While you own all of your own User Contributed Content, you hereby grant us, and our affiliates, licensees and business partners, a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use your User Contributed Content (i) in order to facilitate transactions on the App or the Service, and (ii) in aggregate form, that is, as a statistical measure, but not in a manner that would identify you personally. This type of aggregate data helps enable Flogg to make the App and the Service appealing to as many users as possible. As part of this use of information, we may provide aggregate information, not information about you personally, to our partners about how our users, collectively, use the App and the Service. In connection with any of the uses listed above, you agree to release and discharge us, and our affiliates, licensees, and business partners from any claims, actions and demands of any nature, including but not limited to any claims of libel, infringement of the right of publicity, invasion of privacy, portrayal in a false light, or other claim.
In granting these licenses to us, and our affiliates, licensees, and business partners, you represent and warrant that you own or have the necessary licenses, rights, consents, power, authority and permissions to grant these licenses, which include but are not limited to any third party rights that are required as a result of the subject matter of your User Contributed Content.
Ownership of Flogg Content
General Prohibitions and Agreements
In addition to the prohibitions set forth elsewhere herein, including, but not limited to Section 5 hereof, you agree not to do any of the following while using the App and/or the Service:
Sell any product that promotes violence, sexually explicit materials, illegal content, illegal activities, alcohol, tobacco, pseudo-pharmaceutical, prescription drugs, or discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age, or that are otherwise illegal or offensive, as determined in Flogg’s sole and absolute discretion;
Sell any products using photos or other images that do not show the item clearly or that utilize Internet photos or other photos that you have not taken yourself;
Sell any items that are defective or of poor quality;
Include in your Listing Information any photos or text that contain references to another website, app or merchant;
Make any unlicensed or unauthorized use of, or otherwise infringe violate or misappropriate, any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property or proprietary right of any third parties;
Sell or promote any products or services to children under the age of thirteen (13);
Violate any applicable laws, third party rights, or our policies;
Defame or harass any third party;
Access, tamper with, or use non-public areas of the App, our computer systems, or the technical delivery systems of our providers;
Attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
Attempt to access or search Flogg with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided, or specifically authorized, by us or other generally available third party web browsers (such as Microsoft Internet Explorer or Netscape Navigator);
Attempt to alter or modify the App, the Service, the Flogg Content, or the User Contributed Content of any other user, or use Flogg or any of its services for purposes other than which they were intended;
Send unsolicited email, junk mail, “spam,” chain letters, or promotions or advertisements for products or services;
Forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use Flogg to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the App or the Service;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail- bombing the App;
Impersonate or misrepresent your affiliation with any person or entity;
Send illegal material or offensive messages, as determined within Flogg’s sole discretion, to other Flogg users; or
Attempt to circumvent or manipulate our billing process or the fees owed to Flogg, if applicable.
Furthermore, you agree that you will do the following while using the App and/or the Service:
You will deliver all products sold by you in a timely manner;
You will honor any transaction that you authorize, either as a Buying User or Selling User, and, in the case of Selling Users, will honor all fees owed to Flogg in connection with such sale, if applicable;
All communications and/or representations made by you in connection with any products or Listing Information will be accurate and contain all disclosures and disclaimers necessary to prevent such from being false or deceptive and otherwise comply with your country’s laws and U.S. federal and state laws, including U.S. Federal Trade Commission regulations, policies and guidelines governing advertising, disclosure and consumer protection;
You will notify Flogg of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to any product you are selling within two (2) days of your receipt of such complaint, and you shall assist Flogg, at your sole cost and expense, in taking any necessary or appropriate actions reasonably requested by Flogg to respond to and/or resolve such complaints.
Links from Flogg to Other Sites
The App may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by us of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
You agree to indemnify and hold harmless Flogg, its parents, subsidiaries, affiliates, officers, directors, employees, agents, and representatives and to defend and hold each of them harmless, from any and all claims, liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and rewards) arising from or relating to: (1) your use of and access to the App or the Service; (2) your violation of any laws or any infringement by you, or any third party using your account or Flogg User ID, of any intellectual property, property, privacy, or other right of any person or entity; (3) any breach of any obligation in this Agreement by you, including without limitation, any failure to provide any products or any misrepresentation or fraud relating to any products or Listing Information by a Selling User and any failure to make payment or to fulfill any other required obligations by any Buying User; (4) any intentional misconduct or negligence by you in using the App or the Service; or (5) any claim that a user’s User Contributed Content, or that any Selling User’s products, caused damage of any kind whatsoever to another user or to any other third party.
Limitation of Liability
YOU ACKNOWLEDGE THAT YOU ARE USING THE APP, THE SERVICE AND THE FLOGG CONTENT AT YOUR OWN RISK AND THAT FLOGG, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “FLOGG PARTIES”), WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE FOREGOING. THE APP, THE SERVICE AND THE FLOGG CONTENT ARE PROVIDED ON AN “AS IS” BASIS, AND THE FLOGG PARTIES HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY THE FLOGG PARTIES. THE FLOGG PARTIES DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE APP, THE SERVICE OR THE FLOGG CONTANT WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED ON THE APP.
THE FLOGG PARTIES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THIS AGREEMENT, THE PROVIDING OF THE APP, THE SERVICE OR THE FLOGG CONTENT HEREUNDER, THE SALE OR PURCHASE OF ANY PRODUCTS, SERVICES OR MERCHANDISE VIA THE APP OR THE SERVICE AND ANY INJURY OR DAMAGE CAUSED THEREBY, ANY MISREPRESENTATION OR FRAUD ON THE PART OF A SELLING USER WITH REGARD TO ITS PRODUCTS OR ITS LISTING INFORMATION, YOUR ACCESS TO OR INABILITY TO ACCESS THE APP, THE SERVICE OR THE FLOGG CONTENT, INCLUDING FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE APP, YOUR USE OF OR RELIANCE ON THE APP, THE SERVICE OR THE FLOGG CONTENT, OR ANY OF THE MERCHANDISE, INFORMATION OR MATERIALS AVAILABLE ON THE APP REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
YOU HEREBY AGREE TO RELEASE THE FLOGG PARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED (“CLAIMS”), ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE APP, THE SERVICE OR THE FLOGG CONTENT AND YOUR SALE OR PURCHASE OF ANY PRODUCTS VIA THE APP OR THE SERVICE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “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”.
THE TOTAL CUMULATIVE LIABILITY OF THE FLOGG PARTIES IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $500.
Governing Law; Venue. This Agreement is governed by the laws of the State of New York without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. You irrevocably consent to the personal jurisdiction of the state and federal courts located in New York, New York, for any suit or action arising from or related to this Agreement, and waive any right you may have to object to the venue of such courts. You further agree that these courts will have exclusive jurisdiction over any such suit or action initiated by you against Flogg.
Arbitration. If any dispute, controversy or claim arises between the parties under, out of, or in relation to this Agreement, including any dispute concerning the formation, construction, interpretation, or breach of this Agreement or a party’s performance of its obligations hereunder (“Dispute”), the parties shall attempt in the first instance to resolve the Dispute through mutual good faith consultation. If the Dispute is not resolved in this manner within forty-five (45) days of a party’s notice of a Dispute, then any party may serve a notice on the other party requiring the Dispute to be submitted to arbitration as follows:
Any Dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney rewards) and disbursements arising out of the arbitration, and shall pay an equal share of the rewards and costs of the ADR Provider.
Any other Dispute (including whether the claims asserted can be arbitrated) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered by the New York, NY office of JAMS (the “Administrator”). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be New York, NY, USA. The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s rewards, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the rewards and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ rewards, costs and disbursements (including, for example, expert witness rewards and expenses, photocopy charges, travel expenses, etc.), and/or the rewards and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of any limitations set forth in this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by New York law or United States Federal law.
Notwithstanding the foregoing, either party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its intellectual property rights and/or to seek injunctive relief or other equitable relief.
Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable by any governmental entity, the remaining provisions of this Agreement shall remain in full force and effect provided that the essential terms and conditions of this Agreement for both parties remain valid, binding and enforceable. To the extent permitted by law, the parties hereby to the same extent waive any provision of law that renders any provision hereof prohibited or unenforceable in any respect.
No Assignment. This Agreement and your rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by you without Flogg’s express prior written consent. Any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void. Flogg may assign this Agreement or any of its rights under this Agreement to any third party without your consent.
Notices. Flogg may give any notice required by this Agreement by means of a general notice on the App, electronic mail to your email address on record with Flogg, or by written communication sent by first class mail or pre-paid post to your address on record with Flogg. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). You may give notice to Flogg, addressed to the attention of Compliance Officer. Such notice shall be deemed given when received by Flogg by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address:
Remedies. Flogg’s remedies for any breach of this Agreement by you will include damages, injunctive relief, specific performance, and restitution. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Flogg for which monetary damages would not be an adequate remedy and, therefore, Flogg will be entitled to injunctive relief (including specific performance). The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Entire Agreement; Modifications. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the parties. Flogg reserves the right to make changes to this Agreement, at its sole discretion, pursuant to Section 2 above.
Feedback. In the event that you provide Flogg with any feedback regarding the App or the Service, including without limitation, any flaws, errors, bugs, anomalies, problems with and/or suggestions for the App or the Service (collectively, “Feedback”), you hereby assign to Flogg all rights in the Feedback, including but not limited to, the right to use such Feedback and related information in any manner we deem appropriate.
Modifications to the App or the Service. Flogg reserves the right at any time to modify or discontinue, temporarily or permanently, the App or the Service (or any part thereof) with or without notice. You agree that Flogg shall not be liable to you or to any third party for any modification, suspension or discontinuance of the App or the Service.