Effective: December 16, 2021
Last Modified on December 16, 2021.
Section 9 of these Terms contains an arbitration agreement and class action waiver that apply to all claims brought against Flustr in the United States. Please read them carefully.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THIS IS A BINDING CONTRACT. Welcome to the services operated by Flustr, Inc. (“Flustr” or “We”) consisting of the website available at https://www.flustr.com and our product and mobile app, available at ttps://www.app.flustr.comh (the “Platform”).
When using the Platform, you will be subject to Flustr’s Community Guidelines and additional guidelines or rules that are posted on the Platform, made available to you, or disclosed to you in connection with specific services and features. All such terms and guidelines (the “Guidelines”) are incorporated into these Terms of Service by reference.
In order to use the Platform, made available through Flustr’s mobile app (“the App”), you must have a compatible mobile device; Flustr does not warrant that the App will be compatible with your mobile device. If you access the App using an Apple iOS or Android powered device, Apple Inc. (“Apple”) or Google, Inc. (“Google”), and their subsidiaries, respectively, shall be a third-party beneficiary to this contract and you agree that these third-party beneficiaries have the right to enforce these Terms of Service against you. However, these third-party beneficiaries are not a party to these Terms of Service and are not responsible for the provision or support of the App. You agree that your access to the App also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service.
The App may automatically download and install updates from time to time or require the downloading and installation of updates or new versions for continued use. You acknowledge that in some instances, updates and/or new versions may reduce or remove features and functionality in prior versions of the App.
You acknowledge that Apple and Google are not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. You further acknowledge that, in no event, shall Apple or Google be responsible for the investigation, defense, settlement and discharge of any third-party claim that the App infringes that third party’s intellectual property rights.
The Terms of Service apply whether you are a user that registers an account on the Platform or an unregistered user. You agree that by clicking “Sign Up” or otherwise registering, downloading, accessing, or using the Platform, you are entering into a legally binding agreement between you and Flustr regarding your use of the Platform. You acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, do not access or otherwise use any of the Platform.
Flustr is available to persons over the age of 16. If you are between the ages of 16 and the age of legal majority in your jurisdiction of residence, you may only use the Flustr under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service.
Flustr is also not available to any users previously removed from Flustr or to any persons barred from receiving them under the laws of the United States (such as its export and re-export restrictions and regulations) or applicable laws in any other jurisdiction.
BY DOWNLOADING, INSTALLING, OR OTHERWISE USING FLUSTR, YOU REPRESENT THAT YOU ARE AT LEAST 16 YEARS OF AGE, THAT YOUR PARENT OR LEGAL GUARDIAN AGREES TO BE BOUND BY THESE TERMS OF SERVICE IF YOU ARE BETWEEN 16 AND THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, AND THAT YOU HAVE NOT BEEN PREVIOUSLY REMOVED FROM AND ARE NOT PROHIBITED FROM RECEIVING THE FLUSTR SERVICES.
You are responsible for any mobile charges that you may incur for using the Platform, including text-messaging (such as SMS, MMS, or future such protocols or technologies) and data charges.
In order to register an account on the mobile app, you will be asked to provide us with certain information such as a user name and password. The mobile app may support sign-on from third-party platforms, such as Facebook and Google, to make it easier for you to sign in or create an account. If you elect to sign-on through a third party platform, you may use your Facebook or Google Connect credentials, which will automatically be linked to your account. Use of third-party platforms to create and access your account is subject to the terms and conditions and privacy policies of such third parties. You are solely responsible for maintaining the confidentiality and security of your user name, and password. If you permit others to use your account credentials, you agree to these Terms of Service on behalf of all other persons who use the Platform under your account or password, and you are responsible for all activities that occur under your account or password. Please make sure the information you provide to Flustr upon registration and at all other times is true, accurate, current, and complete to the best of your knowledge.
Unless expressly permitted in writing by Flustr, you may not sell, rent, lease, share, or provide access to your account to anyone else, including without limitation, charging anyone for access to administrative rights on your account. Flustr reserves all available legal rights and remedies to prevent unauthorized use of the Platform, including, but not limited to, technological barriers, IP mapping, and, in serious cases, directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
The Platform is owned and operated by Flustr. Unless otherwise indicated, all content, information, and other materials on the Platform , including, without limitation, Flustr’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement thereof (collectively, the “Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Materials are the property of Flustr or its subsidiaries or affiliated companies and/or third-party licensors. Unless otherwise expressly stated in writing by Flustr, by agreeing to these Terms of Service you are granted a limited, non-sublicensable license (i.e., a personal and limited right) to access and use the Platform for your personal use, commercial use or internal business use only.
Flustr reserves all rights not expressly granted in these Terms of Service. This license is subject to these Terms of Service and does not permit you to engage in any of the following: (a) resale or commercial use of the Platform or the Materials; (b) distribution, public performance or public display of any Materials (excluding your User-Generated Content); (c) modifying or otherwise making any derivative uses of the Platform or the Materials (excluding your User-Generated Content), or any portion of them; (d) use of any data mining, robots, or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the Platform, the Materials, or any information contained in them, except as expressly permitted on the Platform; or (f) any use of the Platform or the Materials except for their intended purposes. Any use of the Platform or the Materials except as specifically authorized in these Terms of Service, without the prior written permission of Flustr, is strictly prohibited and may violate intellectual property rights or other laws. Unless explicitly stated in these Terms of Service, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication, or other legal principles.
Flustr allows you to distribute streaming live audio-visual works on the Platform, participate in “Challenges” and “Battles,” as well as engage via chat or other similar services and activities in which you may create, post, transmit, perform, or store content, messages, text, sound, images, applications, code, or other data or materials on the Platform (“User-Generated Content”).
To the extent permitted by applicable law, Flustr takes no responsibility and assumes no liability for any User-Generated Content or for any loss or damage resulting therefrom, nor is Flustr liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter when using the Platform. Your use of the Platform is at your own risk. In addition, these Terms of Service do not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited. Flustr is not liable for any statements or representations included in User-Generated Content. Flustr does not endorse any User-Generated Content, opinion, recommendation, or advice expressed therein, and Flustr expressly disclaims any and all liability in connection with User-Generated Content. To the fullest extent permitted by applicable law, Flustr reserves the right to remove, screen, or edit any User-Generated Content posted or stored on the Platform at any time and without notice, including where such User-Generated Content violates these Terms of Service or applicable law. You are solely responsible for creating backup copies of and replacing any User-Generated Content you post or store on the Platform at your sole cost and expense.
If you submit, transmit, display, perform, post, or store User-Generated Content using the Platform, you grant Flustr and its sub-licensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sub-licensable, nonexclusive, and royalty-free right to: (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User-Generated Content (including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any form, format, media, or media channels now known or later developed or discovered; and (b) use the name, identity, user-handle, avatar, likeness, voice (or other biographical information), and other information and content that you submit in connection with such User-Generated Content. Should such User-Generated Content contain the name, identity, user-handle, avatar, likeness, voice (or other biographical information), and other information and content of third parties, you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and that Flustr and its sub-licensees are allowed to use them to the extent indicated in these Terms of Service.
With respect to User-Generated Content, the rights granted by you hereunder terminate once you delete such User-Generated Content from the Platform, or generally by closing your account, except: (i) to the extent you shared it with others as part of the Platform and others copied or stored portions of the User-Generated Content; (ii) Flustr used it for promotional purposes; (iii) for Flustr to store archival copies, (iv) as required by applicable laws, regulations, court orders or other legal obligations, and (v) for the reasonable time it takes to remove from backup and other systems.
You are solely responsible for your User-Generated Content and the consequences of posting or publishing it. You represent and warrant that: (a) you are the creator or own or control all right in and to the User-Generated Content or otherwise have sufficient rights and authority to grant the rights granted herein; (b) your User-Generated Content does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or (ii) defame any other person; (c) your User-Generated Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (d) unless you have received prior written authorization, your User-Generated Content specifically does not contain any pre-release or non-public beta software or game content or any confidential information of Flustr or third parties. Flustr reserves all rights and remedies against any users who breach these representations and warranties.
Flustr uses reasonable security measures in order to attempt to protect User-Generated Content against unauthorized copying and distribution. However, Flustr does not guarantee that any unauthorized copying, use, or distribution of User-Generated Content by third parties will not take place. To the furthest extent permitted by applicable law, you hereby agree that Flustr shall not be liable for any unauthorized copying, use, or distribution of User-Generated Content by third parties and release and forever waive any claims you may have against Flustr for any such unauthorized copying or usage of the User-Generated Content, under any theory. THE SECURITY MEASURES TO PROTECT USER CONTENT USED BY FLUSTR HEREIN ARE PROVIDED AND USED “AS-IS” AND WITH NO WARRANTIES, GUARANTEES, CONDITIONS, ASSURANCES, OR OTHER TERMS THAT SUCH SECURITY MEASURES WILL WITHSTAND ATTEMPTS TO EVADE SECURITY MECHANISMS OR THAT THERE WILL BE NO CRACKS, DISABLEMENTS, OR OTHER CIRCUMVENTION OF SUCH SECURITY MEASURES.
If you choose to promote on the Platform (“Promotion”), you must adhere to the following rules: (a) You may carry out Promotions to the extent permitted by applicable law and you are solely responsible for ensuring that any Promotions comply with any and all applicable laws, obligations, and restrictions; (b) You will be classified as the promoter of your Promotion in the applicable jurisdiction(s) and you will be solely responsible for all aspects of and expenses related to your Promotion, including without limitation the execution, administration, and operation of the Promotion; obtaining all necessary third-party permissions and approvals, including without limitation filing any and all necessary registrations and bonds. Flustr has the right to remove your Promotion from the Platform if Flustr reasonably believes that your Promotion does not comply with the Terms of Service or applicable law; (c) Flustr is not responsible for and does not endorse or support any such Promotions. You may not indicate that Flustr is a sponsor or co-sponsor of the Promotion; and (d) You will display or read out the following disclaimer when promoting, administering, or conducting a Promotion: “This is a promotion by [Your Name]. Flustr does not sponsor or endorse this promotion and is not responsible for it.”.
You agree that your User-Generated Content will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, and any other guidelines issued by the FTC from time to time (the “FTC Guidelines”), as well as any other advertising guidelines required under applicable law.
Flustr, the Flustr logos, and any other product or service name, logo, or slogan used by Flustr, and the look and feel of the Platform, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of Flustr, and may not be used in whole or in part in connection with any product or service that is not Flustr’s, in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Flustr, without our prior written permission.
Flustr respects the intellectual property of others and follows the requirements set forth in the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. The DMCA provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright Law. If you believe in good faith that content posted on the Platform infringes upon your copyright, you (or your agent) should send us a notice requesting that we remove the content or block access to it. If you believe in good faith that someone has wrongly submitted a notice to us under this paragraph, then you should send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. We suggest that you consult your legal advisor before filing a notice or counter-notice. Please be aware that there may be penalties for false claims under the DMCA. DMCA details are available at https://www.copyright.gov/onlinesp.
If you believe that your work has been improperly copied and posted on the Platform, please provide us with the following information: (a) name, address, telephone number, email address, and an electronic or physical signature of the copyright owner or of the person authorized to act on his or her behalf; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the content that you claim is infringing is located on the Platform; (d) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (e) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. These requirements must be followed to give us legally sufficient notice of infringement.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA and should be sent to: P.O. Box 88909, Los Angeles, CA 90009.
Repeat Infringer Policy. We will terminate an account holder’s access to the Platform if that user is determined by Flustr to be a “repeat infringer” of copyrighted works on the service – under our policy, a user will be considered a repeat infringer if they accrue three copyright strikes. Furthermore, we may in appropriate cases and at our sole discretion, limit access to the Platform and/or terminate the accounts of any users who blatantly and egregiously infringe the intellectual property rights of others, whether or not repeat infringement has occurred. Account holders generally earn a strike when Flustr receives a complete notification of infringement and does not receive a complete counter-notification regarding the alleged infringement or a retraction of the notification and/or other relevant factors and circumstances exist warranting a strike. Strikes are not permanent, but rather are associated with an account for enough time for Flustr to determine whether the account holder is engaging in repeated infringement such that termination is necessary under this Terms of Service. Flustr may also ask the complainant and/or account holder for more information where We think it’s necessary to fairly apply our Repeat Infringer Policy. If a relevant court rules that an account holder is an “infringer” or “repeat infringer” on Flustr, we will take that ruling as conclusive under our Repeat Infringer Policy. To provide judicial determinations showing that an account holder is an infringer, or a repeat infringer, on the Platform, please forward it to P.O. Box 88909, Los Angeles, CA 90009 with “court ruling regarding infringer/repeat infringer” in the subject line. Flustr personnel will review the submission and may contact the complainant and/or account holder to verify the court ruling and understand its scope.
Your privacy is important to us. Please see our Privacy Notice to learn how information relating to how we collect, use, and disclose your personal information.
At Flustr, our goal is to provide a live streaming, user-generated interactive video game, and social media experience created by our community where creators and communities can interact safely. To achieve this goal, users are required to agree to comply with the below Community Guidelines. These Community Guidelines apply to all User-Generated Content and activity on the Platform. To protect the integrity of our community, as the provider of the Platform, We at Flustr reserve the right to remove any User-Generated Content and/or to block, suspend, or terminate any account at any time for any conduct that We, in our sole discretion, determine to be inappropriate, harmful, or in violation of these Terms of Service.
Flustr has the right, but no obligation, to monitor User-Generated Content and any other users’ interactions on the Platform to determine compliance with these Terms of Service, any other rules established by Flustr, and to comply with any law, regulation, or authorized government request. Flustr will fully cooperate with any law enforcement authorities or any court order requesting or directing Flustr to disclose the identity of anyone posting or transmitting any such information or materials.
Harassment and cyberbullying are not allowed on the Platform. Harassment and cyberbullying have many manifestations, including stalking, personal attacks, promotion of physical harm, hostile raids, and malicious false report brigading. Sexual harassment, specifically, can take the form of unwelcome sexual advances and solicitations, sexual objectification, or degrading attacks relating to a person’s perceived sexual practices.
Nudity and sexually explicit content or activities, such as pornography, sexual acts or intercourse, and sexual services, are strictly prohibited. Content or activities that threaten or promote sexual violence or exploitation are strictly prohibited and may be reported to law enforcement. Sexually suggestive content or activities are also prohibited. You are prohibited from posting any sexually explicit content involving anyone under the age of 18, including of yourself.
Flustr has a zero-tolerance policy for acts and threats of violence, including, but not limited to, attempts or threats to physically harm yourself or others, the use of weapons to physically threaten, intimidate, or harm others and other violent, repulsive or dangerous behavior. Encouraging violent, repulsive or dangerous behavior is strictly prohibited.
Hateful conduct and harassment are not allowed on Flustr. Hateful conduct is any content or activity that promotes or encourages discrimination, denigration, harassment, or violence based on the following protected characteristics: race, ethnicity, color, caste, national origin, immigration status, religion, sex, gender, gender identity, sexual orientation, disability, serious medical condition, and veteran status.
We reserve the right to take action on all instances of hateful conduct, with an increasing severity of enforcement when the behavior is targeted, personal, graphic, or repeated/prolonged, incites further abuse, or involves threats of violence or coercion. Terrorist organizations and hate groups are prohibited from using the Platform; Flustr has zero tolerance for content that advocates or advances violent extremism or terrorism.
Protecting the safety of minors is paramount at Flustr. We strictly prohibit and will not tolerate activities perpetuating abuse, harm, endangerment, or exploitation of minors on the Platform. We reserve the right to report any activity that we determine, in our sole discretion, to be child exploitation or endangerment to the appropriate law enforcement.
Content or activity meant to impersonate an individual or organization is prohibited. Any attempts to misrepresent yourself or deceive people about who you are is prohibited.
You must comply with all applicable local, national, and international laws while using the Platform. Any content or activity featuring, encouraging, offering, or soliciting illegal activity or dangerous activity is prohibited. This includes committing or aiding in the malicious destruction, defacement, or theft of public or another person’s private property without permission, the use, sale or trading of illegal drugs, contraband, counterfeit goods, or illegal weapons. Dangerous activity includes, but is not limited to, self-destructive behavior performed as a stunt or as otherwise meant to entertain, when such behavior could reasonably be expected to cause physical injury.
You are prohibited from using the Platform:
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Flustr, its affiliated companies, and each of our respective contractors, employees, officers, directors, agents, third-party suppliers, licensors, and partners (individually and collectively, the “Flustr Parties”) from any claims, losses, damages, demands, expenses, costs, and liabilities, including legal fees and expenses, arising out of or related to your access, use, or misuse of the Platform, any User-Generated Content that you post, store, or otherwise transmit on the Platform, your violation of the rights of any third party, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. You agree to promptly notify the Flustr Parties of any third-party claim, and Flustr reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Flustr, and you agree to cooperate with Flustr’s defense of these claims. Flustr will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE PLATFORM AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY FLUSTR; (B) THE FLUSTR PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE PLATFORM, INCLUDING ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; (C) FLUSTR DOES NOT REPRESENT OR WARRANT THAT THE CONTENT OR MATERIALS ON THE PLATFORM ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) FLUSTR IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO TEXT OR PHOTOGRAPHY; AND (E) WHILE FLUSTR ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE PLATFORM SAFE, FLUSTR CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR OUR SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FLUSTR OR THROUGH THE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL FLUSTR OR THE FLUSTR PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE PLATFORM, THE CONTENT OR THE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM FLUSTR, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO FLUSTR’S RECORDS, PROGRAMS, OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FLUSTR, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE PLATFORM EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE PLATFORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, FLUSTR SHALL LIMIT ITS LIABILITY TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW.
YOU AND FLUSTR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YOU ACKNOWLEDGE AND AGREE THAT FLUSTR HAS OFFERED THE PLATFORM, USER CONTENT, MATERIALS, AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS OF SERVICE IN RELIANCE UPON THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FLUSTR, AND THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FLUSTR. FLUSTR WOULD NOT BE ABLE TO PROVIDE THE PLATFORM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
9.1 Application. This Arbitration Agreement only applies to you if your country of residence or establishment is the United States. If your country of residence or establishment is not the United States, and you nevertheless attempt to bring any legal claim against Flustr in the United States, this Arbitration Agreement will apply for determination of the threshold issue of whether this Section 9 applies to you, and all other threshold determinations, including residency, arbitrability, venue, and applicable law.
9.2 Overview of Dispute Resolution Process. Flustr is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms of Service provide for a two-part process for individuals to whom this Section 9 applies: (a) an informal negotiation directly with Flustr’s customer service team (described in paragraph 9.3, below), and if necessary (b) a binding arbitration administered by the JAMS (“JAMS”). You and Flustr each retain the right to seek relief in small claims court as an alternative to arbitration.
9.3 Mandatory Pre-Arbitration Dispute Resolution and Notification. At least 30 days prior to initiating an arbitration, you and Flustr each agree to notify the other party of the dispute in writing and attempt in good faith to negotiate an informal resolution. You must send your notice of dispute to Flustr by mailing it to Flustr’s agent for service: P.O. Box 88909, Los Angeles, CA 90009. Flustr will send its notice of dispute to the email address associated with your Flustr account. A notice of dispute must include: the party’s name and preferred contact information, a brief description of the dispute, and the relief sought. If the parties are unable to resolve the dispute within the 30-day period, only then may either party commence arbitration by filing a written Demand for Arbitration (available at www.jamsadr.com) with the JAMS and providing a copy to the other party as specified in the JAMS Rules (available at www.jamsadr.com).
9.4 Agreement to Arbitrate. You and Flustr mutually agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the applicability, breach, termination, validity, enforcement or interpretation thereof, or any use of the Platform (“Dispute”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Flustr agree that the arbitrator will decide that issue.
9.5 Exceptions to Arbitration Agreement. You and Flustr each agree that the following causes of action and/or claims for relief are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction (as defined by Section 12): (a) any claim or cause of action alleging actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (b) any claim or cause of action seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack); or (c) a request for the remedy of public injunctive relief. You and Flustr agree that the remedy of public injunctive relief will proceed after the arbitration of all arbitrable claims, remedies, or causes of action, and will be stayed pending the outcome of the arbitration pursuant to section 3 of the Federal Arbitration Act.
9.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and the Federal Arbitration Act governs all substantive and procedural interpretation and enforcement of this provision. The arbitration will be administered by JAMS in accordance with the Consumer Arbitration Rules and/or other JAMS arbitration rules determined to be applicable by the JAMS (the “JAMS Rules“) then in effect, except as modified here. The JAMS Rules are available at www.jamsadr.com. In order to initiate arbitration, a completed written demand (available at www.jamsadr.com) must be filed with the JAMS and provided to the other party, as specified in the JAMS rules.
9.7 Modification to JAMS Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Flustr agrees that any required arbitration hearing may be conducted, at your option: (a) in the U.S. county where you reside; (b) in Los Angeles County; (c) via phone or video conference; or (d) if all parties agree, by solely the submission of documents to the arbitrator.
9.8 Modification of JAMS Rules - Attorney’s Fees and Costs. Your arbitration fees and your share of arbitrator compensation shall be governed by the JAMS Rules and, where appropriate, limited by the JAMS Consumer Rules. If such costs are determined by the arbitrator to be excessive, Flustr will pay all arbitration fees and expenses. Either party may make a request that the arbitrator award attorneys’ fees and costs upon proving that the other party has asserted a claim, cross-claim or defense that is groundless in fact or law, brought in bad faith or for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the JAMS Rules.
9.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award any relief allowed by law or the JAMS Rules, but declaratory or injunctive relief may be awarded only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
9.10 Jury Trial Waiver. You and Flustr acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
9.11 No Class Actions or Representative Proceedings. You and Flustr acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative or consolidated proceeding. Unless we agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If there is a final judicial determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy, and only that claim, cause of action or requested remedy, will be severed from this agreement to arbitrate and will be brought in a court of competent jurisdiction. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator.
9.12 Severability. Except as provided in Section 9.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision will be severed and the remainder of the Arbitration Agreement will be given full force and effect.
9.13 Changes to Agreement to Arbitrate. If Flustr changes this Section 9 after the date you last accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject that change by sending us written notice (including by email) within 30 days of the date the change is effective. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and Flustr (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and Flustr.
9.14. Survival. Except as provided in Section 9.12 and subject to the Survival section set forth in Section 12, this Section 9 will survive any termination of these Terms of Service and will continue to apply even if you stop using the Platform or terminate your Flustr account.
To the fullest extent permitted by applicable law, Flustr may immediately terminate or temporarily suspend your access to the Platform for any reason outside of our control (such as a force majeure event, as described below), without advanced notice, if, in Flustr’s sole discretion, you fail to comply with these Terms of Service, applicable laws or We reasonably believe termination or temporary suspension is necessary to protect Flustr, the Platform and/or other users. Flustr may terminate or temporarily suspend your access to the Platform for any reason by giving you 30 days’ notice via email or using any other contact information you have provided for your account.
Flustr may amend any of the terms of these Terms of Service by posting the amended terms. Your continued use of the Platform after the effective date of the revised Terms of Service constitutes your acceptance of the terms.
As We regularly look to improve the Platform, we may add or remove features, products, or functionalities. We may also suspend or stop providing the Platform altogether. We may take such actions at any time, however, if we do, we will try to notify you beforehand.
These Terms of Service will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 9 must be brought in state or federal court in Los Angeles, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Los Angeles, California.
If we fail to exercise or enforce any right or provision of these Terms of Service, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service will be effective only if in writing and signed by the relevant party.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you. Any assignment attempt by you shall be void. Flustr may assign such rights and licensees, without any restrictions.
Upon the termination of these Terms of Service, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 4, 7, 8, 9, and 11.
If any provision in the Terms of Service are found to be unenforceable, then that provision will be severed from these Terms of Service and not affect the validity and enforceability of any remaining provisions.
Flustr shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemics, epidemics or disease, or strikes.
The Terms of Service is the entire agreement between you and Flustr relating to the subject matter herein and will not be modified except by a writing signed by authorized representatives of both parties, or by a change to these Terms of Service made by Flustr as set forth in Section 10.
Flustr welcomes comments, questions, concerns, or suggestions. Please contact us by visiting privacy@flustr.com. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.