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Flash Mafia Terms of Use

Last Updated December 29, 2014

Please read these terms of service (“Terms”) carefully as they form a contract between you and Flash Mafia, Inc. (“Flash Mafia”, “we”, “our” or “us”). These Terms govern your access and use of the Flash Mafia “Service”, which refers individually and collectively to the Flash Mafia website (“Site”), the services provided by Flash Mafia, and any software applications (including mobile applications, “Apps”) made available by Flash Mafia, including all written or electronic materials, software, data, text, audio, video, images, photos, graphics, musical works, works of authorship, applications, links or other content (“Content”).

By using or accessing the Service, visiting the Site, or registering for an account with us, you are accepting and agreeing to these Terms, and the policies and guidelines referenced in these Terms. These Terms require the use of arbitration to resolve disputes on an individual basis, rather than jury trials or resolution a collective basis, and you therefore waive your right to settle disputes by class action.

Flash Mafia may modify these Terms at any time by posting the amended Terms on the Site. If you have a Flash Mafia account, Flash Mafia may notify you of the amended Terms by sending you a message when you use the Service, or by email sent to the address in your Flash Mafia account. It is your responsibility to keep the email address for your account up-to-date, to check your email (as well as your junk folder), and to periodically revisit these Terms as posted on our Site. Amended Terms take effect when posted to the Site, when Flash Mafia gives such notice, or when you otherwise accept the amended Terms – whichever occurs first. You will be deemed to accept the amended Terms if you use or access the Service after such posting or notice (except to terminate your account), or if you otherwise accept the amended Terms.

1.   Using the Service

1.1    Registration. You must provide Flash Mafia with true, accurate, current, and complete information about yourself as prompted by the registration process, and keep such information updated. You must be at least 18 years old, or such greater age required by applicable law, to register for a Flash Mafia Service account or to use the Service. You may also permit your children or wards between the ages of 13 and 18 to use the Service, provided that you supervise them and remain fully responsible for all of their activity.

1.2    Passwords and Security. You must keep your account passwords confidential and not authorize any third party to access or use the Service on your behalf. You must contact customer support immediately by email at support@flashmafia.com if you suspect misuse of your account or any security breach. You will be responsible, and Flash Mafia will have no liability, for all activity that takes place with your Flash Mafia Service account accessed using your account credentials whether or not authorized by you. You will take all steps necessary to terminate such unauthorized use and cooperate with Flash Mafia as Flash Mafia may reasonably request.

1.3    Third Party Sites and Applications. There may be links from the Service, or in communications you receive from the Service, to third-party web sites or features. There may also be links to third-party web sites or features in images or comments within the Service. Flash Mafia does not maintain, control or endorse such third party websites and shall have no liability for their contents or operation. The Service also includes third-party content that we do not control, maintain or endorse.

1.4    You may choose to use applications that connect the Service or your profile on the Service with a third party service, application, program, or web site (each, an “Application”). Applications may interact with, connect to, pull or push information from and to your Flash Mafia profile or User Content. Using this functionality typically requires that you login to your account on the third-party service, for instance, logging into Facebook using Facebook Connect. Note that the Application will often cause your User Content to be posted publically on the third party’s service or web site, or will cause your content from the third party service or web site to be posted on your Flash Mafia profile or elsewhere in the Service. By using any Application, you acknowledge and agree that: (a) if the Application is designed to share, manipulate or otherwise disclose Content, you consent to such sharing, manipulation or other disclosure, which may include your personally identifying information and User Content to be publicly disclosed or associated with you; and (b) your use or authorization of an Application is at your discretion and at you assume all risk of such use or authorization you will hold the Flash Mafia Parties (as defined below) harmless for activity related to the Application.

1.5    You agree that you are responsible for all data charges you incur through use of the Service, for example, mobile data fees charged by your telephone carrier.

1.6    Your Privacy. Please review our privacy policy located at http://www.flashmafia.com/privacy/ (“Privacy Policy“) to understand our commitments in maintaining your privacy. You agree to the collection, use and disclosure of information as described in Privacy Policy.

1.7    Account Communications. We may send you emails regarding the Service including notices, updates, and amended Terms. You cannot opt out of these emails, other than by terminating your account. We may also send you emails with promotional information and materials regarding Flash Mafia’s products and services that you may discontinue by following instructions for unsubscribing provided in the email.

1.8    Unacceptable Use. You shall not, nor shall you encourage or assist any third party to: (a) use any unauthorized means to gain access to the Service or use any automated process or service (such as a bot, a spider, a crawler, a scraper, or periodic caching of information stored by Flash Mafia) to access or use the Service or to create accounts, or distribute instructions, software or tools for that purpose; (b) modify, alter, tamper with, repair or otherwise create derivative works of the Service, except to the extent applicable law permits regardless of contractual and legal prohibitions; (c) cause the Site or App to display other than as intended by Flash Mafia; (d) interfere with or disrupt servers or networks used by Flash Mafia to provide the Service; (e) damage, disable, overburden, or impair the Service (or any network connected to the Service); (f) use the account of another user at any time except by a mechanism provided by Flash Mafia and authorized by such user; (g) use the Service in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any Flash Mafia user guides and policies available via the Service (“Policies”); (h) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (i) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unwanted messages, whether commercial or otherwise; (j) advertise or promote a commercial product unless your account is subject to a separate contract governing that relationship and your compensation to Flash Mafia; (k) impersonate or intimidate other users or Flash Mafia; (l) solicit, collect or use the login credentials of other Flash Mafia users; or (m) restrict another user from using or enjoying the Service or encourage or facilitate violations of these Terms. Flash Mafia may determine, in its sole discretion, whether and what action to take in response to a claimed violation of these Terms, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint

1.9    License and Restrictions. Flash Mafia grants you a personal, non-transferable, non-exclusive license to use the Service as provided to you by Flash Mafia. This license is conditioned upon and restricted by the terms, conditions and restrictions in these Terms. Further, this license is for personal and non-commercial use. You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service, or any part thereof, except (and solely) to the extent permitted by applicable law. You may not assign (or grant a sub-license of) your rights to use the Service, grant an interest in or over your rights to use the Service, or otherwise transfer any part of your rights under these Terms. You may not sell, transfer, license or assign your account, followers, or username. If Flash Mafia provided you access to any of the Service (for example, a mobile app, Content, or features purchased via an in-app purchase) in return for a fee, this license is conditioned on your payment of the fees due. These Terms do not grant to you any license or permission to copy, distribute, modify or otherwise use any application programming interface (API), notwithstanding any provision to the contrary. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. Flash Mafia reserves all rights not explicitly granted to you under this paragraph.

1.10 Service Management. There will be occasions when the Service may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links or equipment. Also, Flash Mafia reserves the right to remove any Content from the Service for any reason, without prior notice. Content removed from the Service may continue to be stored by Flash Mafia, including to comply with certain legal obligations, but may not be retrievable without a valid court order. Consequently, Flash Mafia encourages you to maintain your own backup of your Content. In other words, Flash Mafia is not a backup service and you agree that you will not rely on the Service for the purposes of Content backup or storage. Flash Mafia will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any Content. You also acknowledge that the Internet may be subject to breaches of security and that the submission of Content or other information may not be secure. Flash Mafia may, without any obligation to do so: (a) refuse access to the Service to anyone for any reason at any time, (b) force forfeiture of any username for any reason; (c) remove, edit, block, or monitor Content or accounts; or (c) monitor or become involved in disputes between you and other users. You will not hold Flash Mafia responsible or liable for the conduct of any user, or for any Content provided, posted or made available by any user.

1.11 Export Restrictions. Software made available by the service may be subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Service. You may not transfer the Service to anyone or anywhere on U.S. government exclusion lists (for example, the Commerce Department’s compliance list (ww.bis.doc.gov/complianceandenforcement/liststocheck.html) , U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. You represent and warrant that you’re not on any of such lists or under the control of or an agent for anyone on such lists, and further that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

1.12 Feedback. In the event that you provide comments, suggestions and recommendations to Flash Mafia with respect to the Service (including modifications, enhancements, improvements or other changes to the Service, or any feature or function of the Service) (collectively, “Feedback”), you hereby grant to Flash Mafia a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service and any updates, extensions or successive versions of the Service.

1.13 Product Updates. Flash Mafia may, in its sole discretion, make unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, or we may discontinue the Service altogether, without incurring any liability to you. Depending on your device settings, we may automatically check your version of our App, and automatically download to your device new versions of our App.

1.14 Trademarks. The Flash Mafia name and logo are trademarks of Flash Mafia, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Flash Mafia, except in accordance with our brand guidelines, available upon request to contact@flashmafia.com. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Flash Mafia, and may not be copied, imitated or used, in whole or in part, without prior written permission from Flash Mafia.

1.15 Proprietary Rights. As between Flash Mafia and you, Flash Mafia owns all right, title and interest in and to the Service and all of its components (including any updates, modifications, and enhancements to the Service), and all intellectual property rights in or embodied by the Service. You agree not to remove any notices of Flash Mafia’s copyrights, trademarks or other proprietary notices contained in or on the Service.

2.   User Content

2.1    Responsibility for Your User Content. You are responsible for the Content that you provide, post or make available via the Service, or otherwise provided, posted or made available under your account (“User Content”), and for your use of other users’ Content. Flash Mafia will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any User Content. If your access to the Service is suspended or terminated, you will not have access to the User Content. You will: (a) be solely responsible for the nature, quality and accuracy of the User Content; (b) ensure that the User Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (b) promptly handle and resolve any notices and claims relating to the User Content, including any notices sent to you by any person claiming that any User Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (c) be solely responsible for your interaction with other users of the Service, whether online or offline.   You will at all times comply with Flash Mafia’s Photography Guidelines.

2.2    Rightful Use. You represent and warrant that: (i) you own the User Content or otherwise have the right to grant the rights and licenses that you grant under these Terms of Use; (ii) the posting and use of User Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

2.3    Inappropriate Content. You will not use the Service to store, transmit, or display User Content: (a) containing unlawful, defamatory, threatening, pornographic, nude, inappropriately sexual, abusive, libelous or otherwise objectionable material of any kind or nature, (b) containing any material that encourages conduct that could constitute a criminal offense, or (c) that violates the intellectual property rights or rights to the publicity or privacy of others; (d) containing or that uses software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; (f) that harms, threatens, or harasses another person, organization, or Flash Mafia; or (g) including any other person or company’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses. You must not use domain names or web URLs in your username without prior written consent from Flash Mafia.

2.4    License. You hereby grant Flash Mafia and its contractors the perpetual, irrevocable, fully sublicensable, exclusive license to use, modify, adapt, watermark, translate, reproduce, distribute, transmit, publically perform, display, market, disclose, and create derivative works from User Content to provide the Service to you or to other users, or as otherwise permitted by these Terms or our Privacy Policy. You represent and warrant that: (a) you have all the rights in the User Content that you provide necessary for you to use the Service and to grant the rights in these Terms; and (b) the storage, use, display, reproduction, distribution, modification, adaptation or transmission of such User Content doesn’t violate any law or these Terms.

2.5    License Fees. The license granted in Section 2.4 above is royalty free and fully paid, except as follows. From time-to-time, publishers, broadcasters or other parties may want to license your photographs, videos, or similar Content, with or without your descriptions, with or without attribution, from Flash Mafia. If we get paid, we will share a percentage of the Net Revenue with you according to our license fee sharing policy that we will post Site or email to you, and that we may update from time-to-time. For clarity, the license granted in Section 2.4 includes the right, without any obligation or minimum standard of effort required upon Flash Mafia, to promote, market and license your photographs and videos, with or without related User Content, to publishers, broadcasters or similar parties. Further, the license granted in Section 2.4 includes the right, but not the obligation, for Flash Mafia to bring claims, actions, and suits against any party that infringes Content licensed to Flash Mafia, and to enforce its exclusive rights under Section 2.4. You agree to cooperate with and provide reasonable assistance to Flash Mafia in any such claim, action or suit seeking such enforcement. “Net Revenue” means the licensing fee collected by Flash Mafia from the publisher or other licensee, less all costs of good sold. The term “Net Revenue” does not include damages that Flash Mafia recovers against infringing parties.

2.6    Payment. Flash Mafia will send you a check for the license fees due under Section 2.6 above within ninety days after it is collected, provided that: (a) you have provided Flash Mafia with an address to which we can send the check, or if you reside outside the United States of America, you have provided Flash Mafia with a PayPal address to which we may send payment; (b) we may withhold payment until the total amount due to you exceeds USD $20; and (c) you provide Flash Mafia with your social security number (or EIN if your are a legal entity) and other information needed for Flash Mafia to issue Form 1099s for payments made to you.   It is your sole responsibility to collect, report and remit the correct tax to the appropriate tax authorities arising from or relating to our payments to you.

2.7    Ads. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Flash Mafia may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such. You acknowledge and agree that Flash Mafia does not endorse any of the products or services advertised by third parties.

2.8    Disclosure. Except as otherwise described in our Privacy Policy, User Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with Flash Mafia is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place Flash Mafia in a position that is any different from the position held by members of the general public, including with regard to User Content. None of your Content will be subject to any obligation of confidence on the part of Flash Mafia, and Flash Mafia will not be liable for any use or disclosure of any User Content.

2.9    Global Storage. You understand and consent to the storage and processing of User Content and any other personal information in the United States of America. Flash Mafia reserves the right to store and process personal information outside of the United States of America and you hereby give your consent for Flash Mafia to do so.

2.10 Claims of Infringement. If you believe that your Content has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Flash Mafia’s Copyright Agent by written communication (by email with an attached and signed PDF or by fax) that sets forth the items specified below:

  • Fully describe such item, and provide the exact location of the material, such as the permanent URL for the web page containing the material.
  • Your full name, email address, telephone number, and full physical address.
  • Proof of copyright in the Content concerned, namely proof of registration under the DMCA; or, absent such registration, a detailed description of where the work was created, by whom, who or what the subject of the image is, and evidence to support your claim that you own the copyright.
  • Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
  • Sign, scan and email the document to contact@flashmafia.com . Alternately, sign the document and either fax or mail it to the address found at the end of these Terms. Please make sure that your spam filter does not block our response.

3.   Suspensions and Termination.

3.1    We reserve the right, to temporarily or permanently suspend or your access to or use of the Service at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Service in a manner that may cause Flash Mafia to have legal liability or disrupt others’ use of the Service; or (c) scheduled downtime and recurring downtime, or unplanned technical problems and outages.

3.2    You can deactivate your Flash Mafia account by logging into the Service and sending an email to contact@flashmafia.com If we terminate your access to the Service or you use the form detailed above to deactivate your account, your photos, comments, likes, friendships, and all other data will no longer be accessible through your account (e.g., users will not be able to navigate to your username and view your photos), but those materials and data may persist and appear within the Service (e.g., if your Content has been re-shared by others). Upon termination, all licenses and other rights granted to you in these Terms of Use will immediately cease.

4.   Disclaimer of Warranties.

USE OF THE SERVICE IS AT YOUR SOLE RISK. FLASH MAFIA PROVIDES THE SERVICE “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLASH MAFIA MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO: (A) THE SERVICE; (B) THE FLASH MAFIA CONTENT; (C) CONTENT OF ANY USER(S); OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO FLASH MAFIA OR VIA THE SERVICE; INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, (2) ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TITLE, CUSTOM, QUIET ENJOYMENT, SYSTEM INTEGRATION OR FREEDOM FROM COMPUTER VIRUS;AND (3) ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. If you reside in a jurisdiction where applicable law does not permit Flash Mafia to limit express or implied warranties, then only the foregoing disclaimers and limitations that do not conflict with such applicable law apply to you. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.

5.   Indemnification.

To the extent permitted by applicable law, you agree to indemnify, defend and hold Flash Mafia, its subsidiaries and other affiliates, and their respective employees, managers, officers, licensors, suppliers, agents and representatives (the “Flash Mafia Parties”) harmless from any claim, action, investigation or demand, including reasonable attorneys’ fees, arising out of or relating to: (a) User Content; (b) use of the Service by you or under your account; or (c) your violation of these Terms or of any third party rights. Flash Mafia will use commercially reasonable efforts to notify you of any such claim, action, investigation or demand that is subject to your indemnification obligation.

6.   Limitations of Liability.

6.1    EXCEPT AS PROVIDED IN SECTION 6.5, IN NO EVENT WILL ANY OF THE FLASH MAFIA PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR USER CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF THE FLASH MAFIA PARTY WAS ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

6.2    EXCEPT AS PROVIDED IN SECTION 6.5, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF ALL OF THE FLASH MAFIA PARTIES ARISING FROM OR RELATING TO THESE TERMS OR THE SERVICE EXCEED THE GREATER OF: (A) $100, OR (B) THE AMOUNT PAID, IF ANY, BY YOU TO FLASH MAFIA FOR THE SERVICE IN THE TWELVE MONTHS BEFORE YOUR CLAIM AROSE. THE FOREGOING LIMITATION APPLIES UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE.

6.3    EXCEPT AS PROVIDED IN SECTION 6.5, UNDER NO CIRCUMSTANCES WILL ANY OF THE FLASH MAFIA PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND DIRECTLY OR INDIRECTLY CAUSED BY OR RELATED TO: (A) SUBSTANDARD OR INTERMITTENT PERFORMANCE OF THE SERVICE; (B) ACTIONS OR INACTIONS BY A FLASH MAFIA PARTY OR LAW ENFORCEMENT AUTHORITIES REGARDING USER CONTENT OR YOUR ILLEGAL USE OF THE SERVICE; (C) VIRUS, BUGS, TAMPERING, FRAUD, ERRORS, INTERRUPTION, DEFECT, DELAYS OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION OF THE SERVICE.

6.4    YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF FLASH MAFIA’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE FLASH MAFIA PARTIES, AND YOU WILL HAVE NO RIGHT TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE FLASH MAFIA PARTIES.

6.5    To the extent that you reside in a jurisdiction where applicable law does not permit Flash Mafia to limit its liability to the extent set forth in Section 6.1, 6.2 or 6.3 (for example, the exclusion of consequential damages), then such limitations will be read to limit the liability of the Flash Mafia Parties to the full extent that such limitations are permitted under applicable law.

7.   Arbitration.

7.1    EXCEPT FOR AS SET FORTH IN SECTION 7.5 AND 7.6, YOU AND FLASH MAFIA AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE, YOUR RELATIONSHIP WITH FLASH MAFIA, OR THESE TERMS SHALL BE DETERMINED BY BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION. You agree that you and Flash Mafia are each waiving the right to a trial by jury and to participate in a class action. This arbitration provision shall survive any termination of other terms or the termination of your Flash Mafia Service account.

7.2    The party seeking arbitration must notify the other as follows. If you seek arbitration, you must send to Flash Mafia, by certified mail, a written Notice of your claim (“Notice”) to the address at the end of these Terms (“Notice Address”). If Flash Mafia seeks arbitration, it will send, by certified mail, a written Notice to the address in your registration information, or if you have not provided your address, then to the email address we have for your account. A Notice, whether sent by you or by Flash Mafia, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The arbitrator shall not have the power to award damages that are limited or waived by these Terms (such as punitive damages, treble damages, or any other damages which are not compensatory), to the extent such limitation or waiver is permitted under applicable law. The arbitration proceedings and decision of the arbitrator shall be kept confidential (and may not be disclosed) by the parties or the arbitrator, except to the extent necessary to compel any award made by the arbitrator.

7.3    The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The arbitrator shall be bound by these Terms. The arbitration hearings will take place in Irvine, California. All arbitration proceedings and submissions shall be in the English language. However, if you reside outside of the United States of America, you will afford Flash Mafia the opportunity to elect to make the arbitration convenient by either: (a) being conducted solely on the basis of documents submitted to the arbitrator, with the parties participating through telephonic or video conference hearings; or (b) arbitrating in your country of residence at a location reasonably convenient to you and Flash Mafia.

7.4    YOU AND FLASH MAFIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Flash Mafia agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

7.5    You may opt out of these arbitration provisions set forth in Section 7.1-7.4. If you do so, neither you nor Flash Mafia can require the other to participate in an arbitration proceeding. To opt out, you must notify Flash Mafia in writing within thirty (30) days of the date that you first became subject to this arbitration provision. You must use this address to opt out: Flash Mafia, Inc.: Arbitration Opt-out; 6789 Quail Hill Parkway #706; Irvine, CA 92603. You must include your name and residence address, the email address you use for your Flash Mafia account, and a clear statement that you want to opt out of this arbitration agreement.

7.6    If the provisions in Section 7.4 are unenforceable, then sections 7.1-7.5 will be deemed void and without affect. Further, your obligation and our obligation to arbitrate does not extend to any dispute, claim or controversy concerning the infringement or misappropriation of Content that is protected by copyright, trademark, or other intellectual property rights.

8.   Choice of Law and Alternate Forum

8.1    These Terms and the relationship between you and Flash Mafia shall be governed by the state laws of the State of California and the federal laws of the United States of America without regard to their conflicts of laws provisions. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.

8.2    TO THE EXTENT ARBITRATION CANNOT BE COMPELLED UNDER THE TERMS SET FORTH IN SECTION 7, OR IF YOU OPTED OUT OF ARBITRATION AS PROVIDED IN SECTION 7.5, THEN YOU AND FLASH MAFIA AGREE AND IRREVOCABLY CONSENT TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN ORANGE COUNTY, CALIFORNIA, U.S.A. FOR ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THESE TERMS.

9.   Other Terms

9.1    Entire Agreement. These Terms, including the Privacy Policy and other terms, policies and guidelines incorporated by reference, constitute the entire agreement between you and Flash Mafia and govern your use of the Service, superseding any prior agreements between you and Flash Mafia with respect to the Service. The following Sections will survive any termination of these Terms: 1.5-1.8, 1.12, 1.14-1.15, 2, and 4-9.   Termination of these Terms shall not be construed to waive or release any claim that a party was entitled to assert at the time of such termination.

9.2    Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of a breach of these Terms or your use of the Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. This limitation will not apply to claims arising out of the misappropriation or infringement of intellectual property rights.

9.3    Independent Contractors; No third-party beneficiaries; Assignment. Flash Mafia and you are not legal partners or agents of each other; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors. You may not assign or delegate these Terms, your obligations, rights or responsibilities. Any attempt by you to do so is void. Flash Mafia may assign or delegate these Terms, its obligations, rights and responsibilities, in whole or in part, at any time with or without notice to you.

9.4    Government Use. If you are a U.S. government entity, you acknowledge that any software and documentation that are provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

9.5    Savings Clause. If any provision of these Terms is found by a court of competent jurisdiction or arbitrator to be invalid or unenforceable, the parties agree that the court or arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. If the court or arbitrator cannot do so, then the parties agree that the court or arbitrator should strike the invalid or unenforceable provisions, and that the remaining provisions be given their full force and effect.

9.6    Company Use. If you are using the Service on behalf of an organization, you are agreeing to these Terms for that organization and promising to Flash Mafia that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization). Nevertheless, each individual that uses the Service or accepts these Terms on behalf of an organization agrees that the permissions given to Flash Mafia under these Terms, and the restrictions and limitations to the rights of persons and entities using the Service, apply to each such individual. You may use the Service only in compliance with these Terms and only if you have the power to form a contract with Flash Mafia and are not barred under any applicable laws from doing so.

9.7    Interpretation. The section titles and headings in these Terms are for convenience only and have no legal or contractual effect. These Terms will not be construed in favor of or against any party by reason of the extent to which any party participated in the drafting of these Terms. The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect. The word “or” as used in these Terms has the same meaning as “and/or”. The terms ‘include’ and ‘including’ will be deemed to be immediately followed by the phrase “without limitation.” If a party is the subject of a sentence, then the word “will” expresses an obligation, and deemed equivalent to “shall”.

9.8    Notices. Except for notices of a party seeking arbitration that are governed by Section 7.2, all notices or communications to be given under these Terms shall be in writing and shall be deemed delivered upon delivery in person, by facsimile communication with written confirmation, by courier service with its confirmation of delivery to the proper address, or by United States certified, registered, first class or equivalent mail with written confirmation of receipt; each as addressed to the parties at their addresses as set forth below, as each party may update from time to time.

Our address for infringement notices:
Flash Mafia, Inc.
Attn: DMCA Agent
6789 Quail Hill Parkway #706
Irvine, CA 92603

For arbitration or other notices:
Flash Mafia, Inc.
Attn: Legal Department
6789 Quail Hill Parkway #706
Irvine, CA 92603

EMAIL: contact@flashmafia.com

The Service is the copyright of Flash Mafia, Inc. (© 2014 Flash Mafia, Inc.) or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.

End of Terms of Service

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