Terms of Use
Last Updated August 16, 2023
The following Terms of Use (“Terms”) constitute a legally binding agreement between you, personally and/or on behalf of the entity you represent (“User,” “you,” or “your”) and More Than Software LLC (“Flixkit,” “we,” “us,” or “our”), concerning your use of the Flixkit website, www.flixkits.com as well as any other media form, media channel, mobile website, or mobile application related, linked, or other wise connected thereto (collectively, the “Site and/or Services”). By using the Site and/or Services, you agree to be legally bound by these Terms. In addition to these Terms, certain other aspects of the Site and/or Services are subject to additional terms and conditions, such as our Privacy Policy. These other policies are incorporated by reference to these Terms and by using the Site and/or Services, you are agreeing to be bound by these Terms and such other policies as they are applicable. IF YOU DO NOT AGREE WITHALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY FORBIDDEN TO USE THE SITEAND/OR SERVICES AND YOU MUST IMMEDIATELY DISCONTINUE USE.
THESE TERMSINCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS-ACTION WAIVER WHICH IMPACTYOUR RIGHTS IN THE EVENT OF A DISPUTE.
1. License to Use Site and/or Services
We grant you a revocable, non-transferable, non-exclusive, limited license to use the Site and/or Services for permitted uses.
2. Accounts
To use certain features of the Site and/or Services, you are required to first register for a Flixkit account (an “Account”)and provide certain information in that process. You warrant the accuracy and truthfulness of your provided Account information. You are responsible for ensuring the security of your Account log-in credentials and for all actions that take place by your Account. You agree to immediately notify us of any suspected unauthorized conduct with respect to your Account. We are not liable for any loss or damage arising from your failure to abide by the conditions contained within this section.
3. Consent to Use Personal Data
By using the Site and/or Services, you understand and agree to the collection and use of personal data in accordance with our Privacy Policy.
4. Support and Maintenance
We do not have any duty or responsibility to provide you with support regarding the Site and/or Services or to otherwise maintain the Site and/or Services.
5. Ownership of Site and Services
5.1. Flixkit is the owner or authorized licensee of all of the intellectual property rights associated with the Site and/or Services, including without limitation all copyrights, trademarks, patents, and trade secrets but excluding Your Submitted Content, which is defined below. By using the Site and/or Services, you do not obtain any interest in the intellectual property associated with the Site and/or Services and we reserve all rights not expressly granted herein.
5.2. Trademarks and Service Marks. All logos, product names, page headers, custom graphics, icons, trademarks, and service marks appearing on the Site and/or Services, unless noted otherwise, are our trademarks, service marks, and/or trade dress (the “Flixkit Marks”). All other trademarks, product names, company names, service marks, logos, and trade dress used on the Site and/or Services are property of their respective owners. You may not use the Flixkit Marks in any fashion without our permission and any unauthorized use of the Flixkit Marks is expressly prohibited.
6. Your Content
6.1. To use certain features of the Site and/or Services, you may need to submit certain content (“Your Submitted Content”). Your Submitted Content means all information, including content, submitted or otherwise used by you in connection with the Site and/or Services. Your Submitted Content may be viewable by other users of the Site and/or Services and through third-party websites or applications. As such, Your Submitted Content may be treated as non-confidential and non-proprietary.
6.2. When you submit Your Submitted Content, you warrant and represent that:
6.2.1. The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of Your Submitted Content does not and will not infringe upon the rights, including copyright, trademark, patent, trade secret, or moral rights of any third party;
6.2.2. You are the creator and owner of Your Submitted Content or have the necessary licenses, rights, consents, releases, and permission to use Your Submitted Content and to authorize us and other users of the Site and/or Services in any manner contemplated by the Site and/or Services and these Terms;
6.2.3. You are solely responsible for Your Submitted Content and assume all risks associated with the use of Your Submitted Content, including without limitation its accuracy, usefulness, and the disclosure of any personally identifiable information associated with Your Submitted Content;
6.2.4. Your Submitted Content does not violate any applicable laws or regulations and will not be used for any illegal or unlawful purpose;
6.2.5. Your Submitted Content do not violate the privacy or publicity rights of any third parties; and
6.2.6. Your Submitted Content does not contain any obscene or offensive material.
6.3. While we may store information related to Your Submitted Content, we are under no obligation to do so and we may delete any of Your Submitted Content at any time and without notice to you. Your risk associated with Your Submitted Content extends to any and all liability associated with such content, including liability associated with infringing upon the rights of third parties, including without limitation intellectual property rights such as patent, trademark, copyright, and trade secret rights. We reserve the right, in our sole and absolute discretion, to edit, redact, or otherwise change Your Submitted Content, and to pre-screen or delete any of Your Submitted Content at any time and for any reason, without notice. We have no obligation to monitor Your Submitted Content.
6.4. License Back
6.4.1. By submitting Your Submitted Content to any part of the Site and/or Services, you are automatically granting to us (and warranting that you have the right and/or are authorized to grant) an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right, and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute Your Submitted Content for any purpose, commercial, advertising, or otherwise, and to prepare derivative works of, or incorporate into other works, Your Submitted Content, and grant and authorize sublicenses of all of the foregoing. The use and distribution may occur in any media formats and through any media channels.
6.4.2. This license shall apply to any form, media, or technology now known or hereafter developed, and includes our use of your name, company name, and franchise name(as applicable), and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights, if any, in Your Submitted Content, and you warrant that moral rights have not otherwise been asserted in Your Submitted Content.
7. Mobile Application Use License
If you access the Site and/or Services via a mobile application, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and condition of this mobile application license contained in these Terms. You shall not:(1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application;(3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (3) remove, alter, or obscure any proprietary notice (including any copyright or trademark notices) posted by us or the licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitted access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial email; or (9) use any proprietary information or any of our interfaces or other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
8. Third-Party Sites and Content
The Site and/or Services may contain (or you may be redirected to) links to other websites (“Third-Party Websites”) as well as articles, photographs, texts, graphics, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). We do not investigate, monitor, or check the Third-Party Websites or Third-Party Content for accuracy. We are not responsible for any Third-Party Websites or Third-Party Content posted on, available through, or installed from the Site and/or Services and inclusion of, linking to, or permitting the use or installation of Third-Party Websites or Third-Party Content does not indicate our endorsement or approval of them. All of your use of Third-Party Websites and Third-Party Content is at your own risk. These Terms do not apply to any of the Third-Party Websites or Third-Party content and you should review the respective terms of the same. You acknowledge and agree that we are not endorsing any Third-Party Websites or Third-Party Content and that you shall hold us harmless from any losses sustained or harm incurred to you relating to or resulting in any way from any Third-Party Websites or Third-Party Content.
9. Privacy Policy
We care about the privacy and security of your data. By using the Site and/or Services, you agree to be bound by our Privacy Policy, which is incorporated by reference into these Term. The Site and/or Services is hosted in the United States of America and if you access the Site and/or Services from any other region with laws or other requirements governing personal data collection, use, or disclosure that differ from the applicable laws of the United States of America, then you acknowledge and agree that, through your continued use and/or access of the Site and/or Services, you are transferring your data to the United States of America and you agree to have your data transferred and processed in the United States of America.
10. Prohibited Activities
You may not use the Site and/or Services to, directly or indirectly:
10.1. License, sub-license, sell, transfer, or otherwise exploit the Site and/or Services;
10.2. Alter, make derivatives of, reverse engineer, or any similar activity with respect to any part of the Site and/or Services;
10.3. Use the Site and/or Services in order to compete with us;
10.4. Copy, distribute, or transmit any part of the Site and/or Services without our express permission;
10.5. Use the Site and/or Services for any illegal purpose;
10.6. Infringe upon the rights of any third parties, including without limitation copyrights, trademarks, patents, trade secrets, moral rights, privacy rights, publicity rights, or any other similar or related intellectual property or proprietary rights;
10.7. Violate any laws or regulations, including without limitation, any use that is unlawful, amounts to harassment, is tortious, harmful, false, defamatory, misleading, libelous, pornographic, obscene, offensive, or is otherwise offensive to common decency and/or moral standards;
10.8. Create weapons, illegal items, or any other objectionable content and/or items;
10.9. Upload, disseminate, or otherwise transmit any computer viruses, worms, or any other software designed to damage or alter computer operating system(s) and/or data;
10.10. Transmit unsolicited and/or unauthorized advertisements, promotional materials, or spam;
10.11. Collect personal information of other users such as e-mail addresses, names, addresses, phone numbers without their prior consent;
10.12. Interfere with or otherwise disrupt, in any way, servers or networks connected to the Sites and/or Services in a fashion that violates such servers’ or networks’ regulation, policies, and/or procedures;
10.13. Interfere with other users’ use and enjoyment of the Site and Services;
10.14. Upload, disseminate, or otherwise transmit any software or other forms of automation, including without limitation agents and scripts, that result in the creation of multiple accounts, automated searches, requests, and/or queries, or to strip, scrape, or mine information and/or data from the Sites and/or Services (but specifically excluding, on a revocable basis, the ability of public search engines to use spiders to copy information and/or data from the Sites and/or Services for the exclusive purpose of and only to the necessary extent for creating publicly viewable and searchable indexes of such information and/or data while exempting from this revocable exclusion caches and/or archives);
10.15. Use the Site and/or Services under the age of 13;
10.16. Link or otherwise associate content from your site, service, or platform to the Site and/or Services without our prior written consent.
11. Enforcement
We reserve the right, but are under no obligation, to review Your Submitted Content, including without limitation the right to review, investigate, evaluate, and/or take action against you for Your Submitted Content that, in our sole opinion, is in violation of these Terms or raises the possibility of liability for us. Actions we may take include, without limitation, the removal or modification of Your Submitted Content, deletion of your Account, and/or reporting your actions to law enforcement.
12. Indemnification
You agree to indemnify and hold harmless Flixkit, its officers, directors, members, managers, employees, and agents, including litigation costs, attorneys’ fees, and any other similar or related expense, from any and all claims, demands, lawsuits, or similar actions made by any third party due to or stemming from your use of the Sites and/or Services, Your Submitted Content, any action in nonconformity with these Terms, and any action in violation of applicable laws or regulations. We may, but are not obligated to, assume exclusive control, at your expense, of any matter which requires indemnification. You agree to fully cooperate with us in the event that we elect to take control of such action and agrees not to settle or otherwise resolve any matter without our express written consent.
13. Release
You hereby release and discharge Flixkit, its officers, directors, members, managers, employees, agents, parents, affiliates, successors, and assigns from each and every past, current, or future dispute, claim, controversy, demand, liability, action, omission, cause of action, and/or litigation, of any kind or nature, including without limitation breach of contract, tort, intellectual property suits, personal injury, death, and/or property damage, arising out of or related to, directly or indirectly, these Terms or any other interaction with the Site and/or Services. NOTE TO CALIFORNIA RESIDENTS: USERS RESIDING IN CALIFORNIA HEREBY WAIVE THEPROVISIONS OF CAL. CIV. CODE § 1542, WHICH PROVIDES THAT “A GENERAL RELEASEDOES NOT EXTEND TO CLAIMS IN WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TOEXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWNBY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THEDEBTOR.”
14. DISCLAIMERS
14.1. THE SITE AND/OR SERVICES AREPROVIDED “AS IS” AND “AS AVAILABLE” AND ANY AND ALL WARRANTIES AND CONDITIONS,OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING WITHOUTLIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR APARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
14.2. FLIXKIT MAKES NO GUARANTEE THATTHE SITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE,WILL ALWAYS BE ERROR-FREE, SECURE, OR TIMELY, OR WILL BE RELIABLE, OR FREE OFVIRUSES OR OTHER HARMFUL DATA AND/OR INFORMATION.
14.3. TO THE MAXIMUM EXTENT PERMITTEDUNDER LAW, As APPLICABLE, FLIXKIT DISCLAIMS ANY AND ALL RESPONSIBILITY,LIABILITY, OR OTHERWISE ARISING OUT OF DEATH OR PERSONAL INJURY RESULTING FROM,DIRECTLY OR INDIRECTLY, THE USE OF THE SITE AND/OR SERVICES.
14.4. FLIXKIT TAKES NO RESPONSIBILITY,NOR WILL IT BE LIABLE FOR, ANY DAMAGES TO YOUR PROPERTY, INCLUDING COMPUTERVIRUSES OR MALWARE, OR OTHER PROPERTY CAUSED BY OR STEMMING FROM YOUR USE OFTHE SITE AND/OR SERVICES.
14.5. SOME JURISDICTIONS DO NOT ALLOWTHE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT BEAPPLICABLE IN YOUR SPECIFIC SITUATION.
15. LIMITATIONON LIABILITY
15.1. FLIXKIT SHALL NOT, IN ANY EVENT,BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY (A) LOST PROFITS; OR (B) DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATED TO THESE TERMS, YOUR USE OF THE SITE AND/OR SERVICES. ACCESS TO AND USE OF THE SITE AND/OR SERVICES ARE AT YOUR OWN RISK AND DISCRETION.
15.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FLIXKIT’STOTAL LIABILITY TO YOU FOR ANY DAMAGESSTEMMING FROM OR OTHERWISE RELATED TO THESE TERMS OR YOUR USE OF THE SITEAND/OR SERVICES, FOR ANY REASON WHATSOEVER AND IRRESPECTIVE OF THE FORM OF FORUM, IS LIMITED TO AMOUNTS PAID TO FLIXKIT IN THE SIX (6) MONTHS PRIOR TOTHE ASSERTION OF SUCH CLAIM, DEMAND, OR OTHERWISE .
15.3. THE FOREGOING LIMITATIONS ON LIABILITY APPLY EVEN IF THEABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15.4. CERTAIN JURISDICTIONS DO NOT ALLOW THE LIMITATION OREXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVELIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
16. Term and Termination
These Terms, shall remain in full force and effect throughout your use of the Site and/or Services. We may, in our sole discretion, suspend or terminate your Account, for any reason whatsoever, and may, also in our sole discretion, terminate these Terms. Termination of your Account does not relieve you of any other of your obligations contained within these Terms.
17. Intellectual Property Infringement
We respect the intellectual property rights of others and will terminate any Account that repeatedly infringes such rights. We reserve the right to take down any data and/or information believed to, in our sole discretion, infringe upon third party rights.
18. Reporting Alleged Copyright Infringement
If you believe that a user is unlawfully infringing upon your copyright and wish to have the allegedly infringing or unauthorized content removed, please provide the following information in accordance with 17 U.S.C. § 512(c) in written form to our Designated Copyright Agent at:
Designated Copyright Agent
More Than Software LLC
WeWork
725 Ponce De Leon Ave NE
Atlanta, GA 30306
email: team@flixkits.com
Notices provided pursuant to this Paragraph must include the following information:
· Your physical or electronic signature;
· Identification of the work(s) or rights that you claim have been infringed;
· Identification of the material on the Site or Services that you claim is infringing and are requesting to be removed;
· Sufficient information to permit us to locate such allegedly infringing material, such as a URL;
· Your address, telephone, number, and e-mail address;
· A statement that you have a good faith belief that the allegedly infringing material is not authorized by the copyright owner, its agent, or the law; and
· A statement that the information contained in the notice is accurate and, under penalty of perjury, that you are either the owner of the copyright that has been allegedly infringed or that you are authorized to act on behalf of the copyright owner.
Pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notice subjects the complaining party to liability for damages, costs, and attorneys’ fees incurred by Flixkit in connection with your notice and allegation of copyright infringement.
19. Modification
We may occasionally revise these Terms. In the event we make substantial changes to these Terms, we may notify you via email of such changes and/or by prominently posting notices of such revisions on the Site and/or Services. Revisions to these Terms are effective upon their publication and your continued use of the Site and/or Services is indicative of your acceptance of such revised Terms.
20. Dispute Resolution
20.1. Mandatory Mediation and Arbitration. Any dispute arising out of or otherwise related to your use of the Site and/or Services or these Terms, or the breach thereof, shall first attempted to be resolved by direct discussions between you and us. If the dispute cannot be settled through direct discussions, you agree to endeavor first to resolve the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. You further agree that any unresolved controversy or claim arising out of or relating to your use of the Site and/or Services or to these Terms, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Atlanta, Georgia, USA. The arbitration shall be governed by the laws of the State of Georgia. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. Except as maybe required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
20.2. Exemptions from Mediation/Arbitration. You agree that the following disputes are not subject to the mediation/arbitration mechanism specified above: (1) any dispute seeking to enforce or protect, or concerning the validity of, any intellectual property rights of you or us; (2) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (3)any claim for injunctive relief. The venue of any matter falling under this Section shall be the state and federal courts sitting in Fulton County, Georgia and the parties expressly waive any objections to this venue based on lack of personal jurisdiction or forum non conveniens.
20.3. Class Action Waiver. Except as otherwise required under applicable law, you agree that you will not assert class action or representative action claims against us, whether in arbitration or otherwise, which actions are hereby waived; and you shall only submit your own, individual claims in arbitration and will not seek to represent the interests of any other person or entity.
21. Governing Law
These Terms, and any other agreement entered into between you and us, shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to conflicts of laws principles, except to the extent that United States federal law preempts Georgia law, in which case United States federal law will apply, without reference to conflicts of law principles.
22. Severability
If any portion of these Terms are found to be unenforceable by a court of competent jurisdiction, such determination shall have no effect on the remainder of the Terms, which shall continue in full force and effect.
23. Electronic Communications
By creating an Account, you are expressly giving us permission to communicate via electronic means and you agree that all such electronic communication, including without limitation, terms and conditions, agreements, notices, and disclosures, comply with any legal requirements to the same extent as if such communications were provided in writing.
24. Headings
The headings contained in these Terms are inserted only as a matter of convenience and reference and in no way define, limit, or describe the scope or intent of these Terms and do not in any way effect its provisions.
25. Flixkit Contact
Should you have any questions regarding this Agreement or would like to contact us for any other reason, our address is:
More Than Software LLC
WeWork
Ponce De Leon Ave NE
Atlanta, Georgia 30306
USA
