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Terms of Service Agreement
1. Acceptance of Terms.
Seedless Media, Inc. (hereinafter "Fliptube", "We", "Us", "Our") provides its Service as defined below (hereinafter "Service" ) to you, the customer (hereinafter "You", "Your", "Yours", "Customer" ) subject to this Terms of Service Agreement (”TOS”, "Terms", Agreement"). Fliptube may update this TOS from time to time without notice. By initiating and continuing to use the Service, you signify your binding acceptance of the TOS, as published on the Fliptube website (hereinafter ”Site”, "Website") and you represent that you are of legal age to form a binding contract. Contact information: Fliptube.net, 333 W. Brown Deer Rd., #131, Milwaukee, WI 53217, USA, 262-912-0090.
BINDING AGREEMENT: This document describes the terms and conditions governing the Customer’s receipt of and payment for Service(s) provided by Fliptube and IS SUBJECT TO BINDING ARBITRATION.
Please read this TOS carefully and save it. Your signature on this document and/or your use of our Service(s) constitutes acceptance of this Agreement in full. Acceptance of Terms of Service required. Credit and other restrictions apply. This Agreement is effective when you sign below or when you first use our Service(s), whichever occurs first, and it continues until the Service is terminated by either you or us, according to the terms of this Agreement. Regardless of which party terminates this Agreement, You are still responsible for paying for any of the Service fees that you have contracted for or otherwise received and agreed to.
2. Changes To The TOS Or Site.
Fliptube may change or modify the Terms or any policy or guideline referenced herein from time-to-time without notice other than posting the amended Terms on the Site. The amended Terms will automatically be effective when initially posted on our Site. Your continued use of our Service after changes in these Terms are made shall constitute your consent to such changes. Fliptube reserves the right to change any and all content contained on the Site or in the Terms at any time without notice.
3. Description Of Service.
Thank you for choosing Fliptube for your entertainment hosting services. The “Service” includes (a) the Site, (b) the Services provided by the Site and all the hosting-related support made available through the Site or Services. Any new or ancillary features added to or augmenting the Service are also subject to this TOS.
We provide digital entertainment place-shifting hosting services that allow Customers to receive personal television "best effort streams" at up to 6 Mbps upload speed over the Internet to computers that meets the minimum system requirements or an internet-enabled television screen (referred to collectively as "Service" or “Services”). In order to receive our Service(s), it is necessary that you have internet access via an Internet Service Provider (“ISP”), and a digital entertainment place-shifting device (i.e. Sling Box).
We shall not be responsible for any television broadcasting or ISP charges you incur in association with our Services. You are independently responsible for obtaining and maintaining equipment and services from both a television broadcasting provider and an ISP. Any failure by you to obtain or maintain equipment and services from either a television broadcasting provider or an ISP will not affect this or any other Agreement between you and us. Nothing in this Agreement alters your Agreement(s) or obligations with any other party.
4. Permission To Use The Service - Viewing.
You may access the Service for personal use only, provided that you are in compliance with all provisions of this TOS. By using or accessing this Service you agree to comply with the copyright, trademark, service mark, and all other applicable laws that protect the Service. You agree not to copy, distribute, transmit, publicly display, publicly perform, modify, rent, sell, or create derivative works of any portion of the Service without the permission of Fliptube and the copyright holder of that material. Additionally, you may not use any of our trademarks. We, or any programming provider, may prosecute violations of the foregoing against you and other responsible parties in an arbitration or in any court of competent jurisdiction pursuant to the Applicable Law and Forum Selection provisions in this Agreement. Fliptube may cancel or restrict usage of accounts in order to maintain quality of service levels for all of its customers. If Fliptube, in its sole discretion, determines that usage of an account (either in form, or in volume) exceeds what it deems reasonable, Fliptube may cancel, suspend, or decline to renew service for that account without notice.
You are welcome to link to the Site from your website, provided that your website does not imply any endorsement by or association with Fliptube. Any link to the Site is subject to denial by Fliptube and you agree to remove and and all links to the site upon email request by Fliptube. You acknowledge that Fliptube may, in its sole discretion and at any time, discontinue providing any part of the Service without notice. Fliptube reserves the right to refuse service to anyone at anytime for any reason.
5. Prohibited Use Of Service - Conduct.
You agree not to knowingly transmit, or knowingly permit to be transmitted via any system you control or should control, to or across any Site or Service operated by Us, any electronic content consisting of unsolicited commercial e-mail or excessive amounts of commercial Usenet postings ("spam"), or any material designed to discover and/or breach the security systems of Fliptube or any third party ("hacking"), or any content known to contain a software virus or Trojan horse ("infected material"), or any content otherwise illegal to possess or transmit under the laws or regulations of the State of Wisconsin or the United States of America. You agree not to engage in any activity designed to hide the point of origin of any content you transmit to or through our infrastructure, programming, or other system. You agree not to knowingly attempt to cancel, supercede or otherwise interfere with e-mail or Usenet posts other than those you originate.
We consider You to be responsible for, and the recipient of programming on, any equipment You own that is associated with the Service(s) that we provide. You are liable for charges incurred in the use of Your equipment by others. It is Your responsibility to impose any viewing restrictions on other family members or guests, as you think appropriate. We are not responsible to You or anyone else based on the content of the programming You receive from Your television broadcasting provider or your ISP. Additionally, portions of the Service, including specifically, certain content available via the Service, have restrictions regarding the suitability of content or programming for those under age 18. By using the Service and/or the Site, you acknowledge and agree that You will not access or view any content and programming that you are not legally of age to access or view.
Through your use of the Service, You agree to comply with all government laws, rules and/or regulations applicable to you and not violate the rights of others, or the operational and security mechanisms of the Service. Examples of prohibited behavior include, but are not limited to:
Using the Service to promote, conduct, or contribute to fraudulent, obscene, or illegal activities, including deceptive impersonation or activities involving the exploitation of children.
Using the Service to violate anyone’s privacy rights (e.g. distributing unwanted commercial solicitations), to infringe on intellectual property rights (including copyrights and trademark rights), to harass or defame others, or to promote hatred towards any group of people.
Disrupting, circumventing, or interfering with any part of the Service; forging or modifying any data processed or distributed by the Service; or using an automated process to cause greater demand on the Service than a single person could produce.
Altering, modifying, deleting, or otherwise interfering with or in any manner compromising any content, programming, advertising, services and/or features contained on or through the Service, including, without limitation, the Service’s advertising and/or content delivery and display functionality.
6. Programming.
Within 15 working days of your purchase and our acquisition of equipment and services from a television broadcasting provider, we will provide you with access via the Internet to the television package you agreed to have us host and will provide you with Finder ID (or corresponding connection IP) and password to be used in conjuction with the use of your Sling Box.
7. Equipment.
If you cease to be our customer for any reason (whether voluntarily or involuntarily) or if you decide to cancel or terminate your service agreement with us or your television broadcasting provider, you must call us within seven (7) days after the termination of the respective service to make arrangements for us to deliver all of your equipment to you (whether by ground or air freight service). You agree to pay Fliptube thirty-five dollars ($35.00) for the handling of your equipment in addition to the shipping costs directly related to your . If you do not comply with this obligation, you acknowledge that you will be responsible for any and all charges or fees attributed to you by your television broadcasting provider and/or other equipment provider. Additionally, you agree that Your equipment will be deemed "abandoned if not processed for return to you within 30 days of service termination.
8. Customer Information.
You represent that you are at least 18 years of age or otherwise legally able to enter a legally binding contract. You agree to provide true, accurate, current, and complete contact information about yourself. You also agree to promptly update your contact information with Flptube and to keep it true, accurate, and complete. You must notify Us immediately of any change in your name, mailing address, billing address, residence address, or telephone number.
You are responsible for maintaining the confidentiality of any password and/or account username used in association with our Service(s), and you are fully responsible for all activities that occur under your password(s) and account(s). You agree to: (i) keep your username(s) and password(s) confidential and not share them with anyone else; (ii) immediately notify us of any unauthorized use of your password(s) and account(s) or other breach of security and (iii) use only your username(s) and password(s) to log into our Service(s).
9. Payment.
Initial Set-up: You will be charged an initial set-up fee of one hundred and fifty dollars ($150.00) to establish your account with us, and for us to purchase a Sling Box on your behalf. Your set up fee will include all charges associated with configuring your equipment receiver and Sling Box for internet readiness, and to establish bandwidth on which to stream Service media to you via the internet.
Monthly Service Fee: In addition to the initial set-up fee, in return for receiving our Service(s) you will be charged a monthly service fee based on the Service Plan you choose when you sign up. THE MONTHLY SERVICE FEE IS SUBJECT TO CHANGE AT ANY TIME. You agree to pay all invoices for our Services promptly when due and agree that such timely payment is an essential condition for our Service(s). We will not pay interest on deposits unless required by law to do so. Electronic signatures and/or faxed copies of signatures shall be as legally binding as original signatures. Any over-billing errors must be reported to us within 90 days of the error, and adjustments or refunds for errors over 90 days will not be made. We reserve the right to bill you for any item that has not been billed to you and should have been.
Programming: You will pay in advance, at our rates in effect at the time, for all Service(s) ordered by you or anyone who uses your equipment and/or ISP to receive our Service(s), with or without your permission, until the Service is canceled at the beginning of each month or at the beginning of any 30 day billing period. The outstanding balance is due in full each month prior to services to be rendered for that billing period. We may, in our sole discretion, accept partial payments, which will be applied to the oldest outstanding statement. No "payment in full" notation or other restrictive endorsement written on your payments will restrict our ability to collect all amounts owing to us. We may reduce your service to a minimum service level, at our rates in effect at the time, or deactivate your Service if you do not pay your invoices on time, after any applicable grace period.
Taxes: You will pay all taxes or other governmental fees and charges, if any, which are assessed. We may not always give advance notice of these items.
Administrative Fees: In order to control the basic charges, which apply to all customers, we charge fees that arise in specific circumstances only to those customers responsible for them. This list is not exclusive, and we reserve the right to modify these fees or charge additional fees. Accordingly, you will pay the following fees when they are applicable:
a. Administrative Late Fee: If we do not receive your payment by the due date on your bill, we may charge you an administrative late fee of the lesser of (i) up to $15.00; or (ii) the maximum amount permitted under and subject to applicable law per month or partial month until the delinquent amount is paid in full. This late fee is not an interest charge, finance charge, time price differential or other such charge or payment of a similar nature. You acknowledge that this fee is reasonably related to the actual expense we incur due to late payment and may be subject to limitations set forth by law.
b. Check by Phone Fee: If you elect to pay any outstanding balance over the telephone we may charge you the lesser of (i) up to $15.00; or (ii) the maximum amount permitted by applicable law.
c. Deposits: We may require that you provide a deposit prior to or after your activation of our Service(s), which we may apply against any unpaid amounts at any time. Deposits will appear on your bills as credits, from which we will deduct our charges. Deposits will not earn interest.
d. Customer Assistance Fee: If you call or e-mail or otherwise contact us with questions pertaining to the Service(s) we provide you, we may charge you a fee of up to $15.00 for each response to each inquiry, even if the inquiry is later canceled.
e. Deactivation Fee: If you elect to cancel the Service(s) we provide you before the end of the first six months of activity, or if we deactivate your Service because of your failure to pay or for some other breach on your part, you will be charged a minimum fee of (i) $200.00; or (ii) the maximum amount permitted by applicable law.
f. Returned Payment Fee: If any bank or other financial institution refuses to honor any payment, draft, or instrument submitted for payment to your account, we may charge you a fee the lesser of (i) up to $30.00; or (ii) the maximum amount permitted by applicable law. You acknowledge that this fee is not an interest charge, finance charge, time price differential or other such charge or payment of a similar nature and it is reasonably related to the actual expense we incur due to unsatisfied payment.
g. Pre-paid Accounts: Accounts that are paid for in advance (in excess of the standard one month advance policy) represent non-refundable service contracts between Fliptube and the Customer and do not generate interest payable to the Customer. These accounts are for the total service period requested and are subject to a prorated refund solely upon the Cable providers denial of service to Fliptube or expressed denial of service to a stated Fliptube Customer. The Terms Of Service Agreement in effect at the time of a pre-paid account service purchase are to be the Terms and Conditions under which the account is administered until the end of the pre-payment period only.
Service Charge(s) and Fees: We bill for most Services in advance. Purchasers of our services agree to be bound by the Uniform Consumer Credit Code . A service charge of 1.5% per month will be charged on all past due amounts.
Billing Statements: We will send you a statement, via e-mail, for each billing cycle (usually once every 30 days) unless you have a zero or nominal balance due, or a nominal credit balance, on your account at the end of a billing cycle. Statements will show: (1) payments, credits, purchases and any other charges to your account (2) the amount you owe us, and (3) the payment due date. If you elect to make automatic credit card or debit card payments, you will not receive monthly statements unless you request that they be sent.
Automatic Credit Card Payments: We will use the credit card information you provide us to automatically bill you for each billing period. You will be responsible for keeping all the necessary information for the automatic payments current and, when requested, assist is providing any information needed to complete the agreed to transaction.
Questions About Your Statement: If you think your statement is incorrect or if you need more information about it, contact us immediately. We will try to resolve any complaints you have as promptly as we can. If you dispute a valid credit card charge levied by Fliptube or its agent or representative, your account with us may be disabled and you will be charged a minimum of $40.00 service fee. Undisputed portions of the statement must be paid by the due date to avoid a late fee and possible reduction or deactivation of Service(s).
Consents Regarding Credit: In order to establish an account with us, you authorize us to inquire into your creditworthiness by checking with credit reporting agencies. If you are delinquent in any payment to us, you also authorize us to report any late payment or nonpayment to credit reporting agencies. Due to the subjective nature of creditworthiness, we reserve the right to require prepayment for any Service(s) via cashier’s check, money order, or credit card, notwithstanding your credit rating, past history, or practice.
Collection Costs: If your account is referred to collection, you agree to pay any collection costs incurred by us, including, but not limited to, reasonable attorneys’ fees, filing fees, court costs, and any expenses incurred with third party vendors or collectors.
10. Cancellation.
Term: The term of this Agreement is indefinite and Service(s) will continue until canceled as provided herein. Unless you notify us that you wish to cancel it, we will automatically renew Service(s) that you subscribe to on a periodic basis, including any monthly or annual subscriptions as long as we continue to carry the Service(s). If you breach any term or condition of this Agreement, this Agreement will terminate immediately upon notice to you.
The Service is offered on a monthly basis for a term which begins on the date that Fliptube activates your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Fliptube written notice of non-renewal at least seven (7) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including without limitation unbilled charges, which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
Your Cancellation: In the event you want to cancel the Service(s) we provide you, you must notify us in writing seven (7) days prior to such cancellation. This notice must contain your current contact information (including telephone number, and e-mail address), and it must either be faxed or mailed to us. Cancellation prior to the end of Your initial six (6) months of Service use will result in a one-time cancellation fee of $200. Your notice is effective on the day we receive it. You will still be responsible for payment of all additional outstanding balances accrued through that effective date. For Service(s) sold in blocks of multiples of one month, if you cancel such Service(s), we will credit you only for full months not used. For example, if you subscribe for a year of such Service(s) from January through December but cancel on April 14, we will credit you for the subscription fees for May through December only. However, we would not credit any fees for the period of January through April.
Our Cancellation: We may cancel your Service(s) at any time if you fail to pay amounts owing to us when due, subject to any grace periods, breach any other material provision of this Agreement, or act abusively toward our staff. Any Internet activity, which references back to us or its services in a damaging manner, may result in suspension or termination of your account(s). Illegal Internet activity using or referencing to Fliptube or Fliptube.net or the parent corporation of Fliptube or an account or Service(s) provided by us will result in immediate termination, possible prosecution, and assessment of legal fees accrued. In the case where we cancel the Service(s) we provide you, you will still be responsible for payment of all outstanding balances accrued through that effective date, including any deactivation fee. In addition, we may cancel the Service(s) we provide you if you elect not to accept any changed terms described to you, as provided in this Agreement.
Credit Balances: If you have a credit balance after the close of your account and issuance of the final bill, we will automatically issue you a refund. However, if your credit balance is less than $1.00, we will not issue you a refund unless you make a written request for the refund. If you do not make such a written request for the refund within one year of the close of your account, you forfeit any credit balance remaining on your account and your account balance will be reset to zero.
Fliptube reserves the right to refuse service to anyone at anytime for any reason.
11. Privacy Policy.
Fliptube agrees to protect your personal information as described in the Privacy Policy published on the Site. You agree that Fliptube can export your information to any country as operationally necessary, even if that country’s privacy laws are weaker or different from the privacy laws of your country and that Fliptube can use and transfer your personal information to the extent provided in the Privacy Policy.
12. Communications.
Communications Not Private: Your communications with us are not private and may be published either in their entirety or in edited form at any time, at our sole discretion.
13. Changes In Agreement Terms.
Ability to Change Contract Terms: We reserve the right to change our rates and otherwise modify the terms and conditions on which we offer Service(s) without prior notice. In the event that you wish to terminate your account due to change in the terms or conditions, you, the customer, will have 10 days from the date of notification of the change(s) to either mail or fax us, at the numbers listed above a written request to terminate services. Otherwise, the existing service will operate under the New TOS and any pricing alterations affecting your account will be billed at the new rate. This Agreement hereby supercedes all previous representations, understanding, or agreements, written or oral, by or between You and Us.
Any notifications required by this Agreement may be delivered to you via e-mail, and you consent to receive communications from us electronically. It is your responsibility to ensure that we have a valid e-mail address for you on file. Our inability to contact you via e-mail due to a missing, inaccurate, incomplete, or inaccessible e-mail address will remove our obligation to attempt to contact you further.
We reserve the right to take whatever legal actions we deem appropriate to enforce the Terms and Conditions in this Agreement. We also reserve the right to change, at any time and without prior notice, any policies we use for such enforcement. The actions we take may include account suspension or termination. We do not issue any credits for accounts cancelled due to policy violations. Fliptube reserves the right to refuse service to anyone at anytime for any reason.
14. Limitation On Our Liability.
Warranty Disclaimer: We provide Service(s) “as is” and “as available.” WE DISCLAIM ANY STATUTORY OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. We shall only be responsible for a warranty(ies) that are expressly and specifically set forth in this Agreement. As such, you agree to use all Service(s) provided by us at your own risk. You also agree that neither we nor any of our representatives makes or passes on to you or any other third party any warranty or representation on behalf of us or our representatives, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement. Additionally, we do not pass on to you any express or implied warranties that our Service(s) will meet your specific requirements, will always be available, accessible, uninterrupted, timely, secure, operate without error, will be error free, or free of viruses or other harmful components. No advice or information provided by Us or any of our representatives or agents shall create a warranty. THIS ALLOCATION OF RISK IS REFLECTED IN OUR PRICES.
Additional Disclaimer: In no event shall we or any of our affiliates be liable for any loss, loss of data, or other damaged, including, but not limited to, lost profits or any special, incidental, consequential, or punitive damages arising out of, relating to, or in connection with, directly or indirectly or intentionally or negligently, the use of our Service(s) or this Agreement, even if we or any of our affiliates have been advised of the possibility of such damages, or for any claim by any third party. You waive and release all claims and causes of action accrued at anytime and whether known or unknown, against us and our owners, directors, officers, employees, agents, representatives, subcontractors, suppliers, successors and assigns (the “Company Parties”) for any and all loss and damage caused in whole or in part by the Company Parties and/or your use of the Service(s) provided by us. If this waiver and release is not given full effect, then the total amount of any liability of us and Company Parties collectively, including any attorneys’ fees and costs, shall not exceed the total fees actually paid by you for the Service(s) for the three months preceding our receipt of written notice of your claim. THIS ALLOCATION OF RISK IS REFLECTED IN OUR PRICES.
Service Interruptions: Service(s) may be interrupted or delayed from time to time for a variety of reasons. These include, but are not limited to, malfunctions, maintenance, and improvements to the infrastructure and/or programming of our Services. Additionally, the Service speed can vary depending on location, line quality, inside wiring, Internet traffic, and other factors beyond our control. We do not guarantee upload or download speeds. You understand that it may not be possible for you to receive advance notification of any such interruption or delay of service. We are not responsible nor liable for any delay, interruption, or failure of Service that occurs due to circumstances beyond our control, such as those caused by other companies, acts of God, power failure or any other cause beyond our reasonable control. However, because we value our customers, for an interruption of a significant length of time that is within our reasonable control, upon your request we will provide what we reasonably determine to be a fair and equitable adjustment to your account to make up for such Service interruption. THIS WILL BE YOUR SOLE REMEDY AND OUR SOLE DUTY IN SUCH CASES.
Acknowledgment of Insecurity: You acknowledge that the Internet is an inherently insecure environment and that any computer or other equipment you attach to the Internet or to any network attached to the Internet may become the target of computer hackers. You are solely responsible for keeping your machines and other equipment secure and free of viruses or other harmful programs that can directly or indirectly interfere with the operations of our Services, and that of third parties connected to its Services. You are solely responsible for guarding against and repairing your computers and other systems from any infection by malicious code or unauthorized use. As such, we shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings resulting from: other users accessing your computer or our Service(s); security breaches; eavesdropping; denial of service attacks; interception of traffic sent or received using the Service(s); your reliance on or use of the equipment associated with our Service(s); or the mistakes, omission, interruptions, deletion of files, errors, defects, delays in operation, transmissions, or any failure of performance of the equipment or services; the use of Service(s) provided by us, even if used by a third party; and the accuracy, completeness, and usefulness of any and all Service(s).
Application of Limitations: The foregoing limitations apply to the acts, omissions, negligence, and gross negligence by us, our owners, officers, employees, agents, contractors, and/or representatives which, but for this provision, would give rise to a cause of action against us in contract, tort, or any other legal doctrine. YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT.
Indemnification: You agree to protect and indemnify us against any and all liability, loss or expense arising from any breach by you of any agreement related to the services, claims of libel, unfair competition, unfair trademarks, trade names or patents, violations of rights of privacy and infringement of copyrights and property rights resulting from your use of the access and other Service(s) provided by us. THIS ALLOCATION OF RISK IS REFLECTED IN OUR PRICES.
Liability for Costs, Fees, and Penalties: In addition to any other fees and penalties that may be assessed by us, as provided herein, you shall be held liable for any and all costs incurred by us as a result of your violation of any terms and conditions of this Agreement. This includes, but is not limited to, attorneys' fees and costs resulting from Postmaster responses to complaints from and the cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations. The Company's current hourly rate for responses to complaints and cleanup of unsolicited commercial mailings and/or unauthorized bulk mailings and/or news server violations is $90.00 per hour, with a minimum one (1) hour charge, plus $1.00 for each bulk-email or Usenet message sent, plus US $1.00 per complaint received. These rates are subject to change at any time without notification. THIS ALLOCATION OF RISK IS REFLECTED IN OUR PRICES.
Usernames and Password Security: You agree that any and all usernames and/or passwords associated with Services provided to you by us, as well as any and all changes to either of those items, are your sole responsibility.
*PLEASE READ THIS CAREFULLY* You understand and agree that Fliptube shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses (even if Fliptube has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service; (b) the cost of procurement of substitute services resulting from any services obtained through or from the Service; (c) unauthorized access to or alteration of your transmissions or data; (d) statements or conduct of any third party on the Service; (e) inaccuracies, mistakes, or errors of content; (f) personal injury or property damage of any nature whatsoever resulting from your access to and use of the Service; (g) any bugs viruses, Trojan horses, or the like, which may be transmitted to or though the Service by a third party; or (h) any other matter relating to the Service, whether based on warranty, contract, tort, or any other legal theory. In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, you agree that the aggregate liability of Fliptube shall not exceed the amount of one hundred (100) US Dollars.
15. Disclaimer Of Warranties.
*READ THIS CAREFULLY* You understand and agree that your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis and to the fullest extent permitted by law, Fliptube expressly disclaims all warranties, express or implied, in connection with the Service and your use thereof, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, accuracy, and non-infringement. Fliptube makes no representations or warranties about the accuracy or completeness of the content made available through the Service or the content of any websites linked to the Site. Fliptube does not warrant, endorse, guarantee, or assume responsibility for any product, application or service advertised or offered by a third party through the Service or any hyperlinked website or featured in any banner or other advertising, and Fliptube will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products, applications or services. As with the purchase of a product or service, or installation or download of any application, through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. No advice or information, whether oral or written, obtained by you from Fliptube or through the Service shall create any warranty not expressly stated in this TOS.
16. Indemnification.
You agree, at your own expense, to indemnify, defend, and hold harmless Fliptube, its employees, agents, and representatives against any claim, alleged claim, suit, action, or administrative proceeding arising out of, or related to use of or access to the Service, or violation of this TOS by you or by someone else using your User ID.
You agree to protect and indemnify us against any and all liability, loss or expense arising from any breach by you of any agreement related to the services, claims of libel, unfair competition, unfair trademarks, trade names or patents, violations of rights of privacy and infringement of copyrights and property rights resulting from your use of the access and other Service(s) provided by us. THIS ALLOCATION OF RISK IS REFLECTED IN OUR PRICES.
17. Governing Law.
This TOS shall be governed by and construed in accordance with the laws of the United States, without regard to conflict of law rules thereof. Any action brought by you against Fliptube arising out of this TOS shall be brought exclusively through the Arbitration process governed by the laws of the United States, and any action brought by Fliptube against you arising out of this TOS shall, at the election of Fliptube, be brought in either the courts located in the United States, or the applicable courts of the jurisdiction in which you reside. You and Fliptube hereby consent to, and irrevocably submit yourselves to, the exclusive personal jurisdiction and venue of such courts. You further agree not to bring claims on a representative, class member basis, or as a private attorney general.
18. Resolving Disputes.
In order to expedite and control the cost of disputes, you and we agree that any legal or equitable claim relating to this Agreement, any addendum, or the Service(s) we provide you (referred to as a "Claim") will be resolved as follows:
BINDING AGREEMENT: This document describes the terms and conditions governing the Customer’s receipt of and payment for Service(s) provided by Fliptube and IS SUBJECT TO BINDING ARBITRATION. In accord with the “Formal Resolution” provisions, you and we agree that both parties will resolve any dispute arising under this Agreement and/or any addendum thereto, as well as any dispute pertaining to Service(s) provided to you by us, through binding arbitration to be held in the state of California pursuant to the laws of the state of California . You further irrevocably waive any right you may have to trial by jury.
We will first try to resolve any Claim informally. Accordingly, except as otherwise provided for in this Agreement, neither of us may start a formal proceeding for at least 60 days after one of us notifies the other of a Claim in writing. You will send your notice to the address on the first page of this Agreement, and we will send our notice either to the billing address or the e-mail address you provide us.
If we cannot resolve a Claim informally, any Claim either of us asserts will be resolved only by binding arbitration. The arbitration will be conducted under the rules of American Arbitration Association (AAA) that are in effect at the time the arbitration is initiated (referred to as the "AAA Rules") and under the rules set forth in this Agreement. If there is a conflict between AAA Rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek remedies available to you pursuant to United States law and this Agreement. If you decide to initiate arbitration, you agree to pay half of all of the costs charged by AAA for the arbitration proceeding. Other fees, such as attorneys’ fees and expenses of travel to the arbitration will be paid in accordance with AAA Rules. The arbitration will be held at a location in Milwaukee County in the State of Wisconsin, United States unless you and we both agree to another location or telephonic arbitration. To start an arbitration, you or we must do the following things:
a. Write a Demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered.
b. Send three copies of the Demand for Arbitration, plus the appropriate filing fee to:
Fliptube.net
333 W. Brown Deer Rd., #131
Milwaukee, WI 53217
(262)912-0090
c. Send one copy of the demand for arbitration to the other party.
Special Rules. (i) In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. (ii) Neither you nor we shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you and we agree that the AAA Class Action Procedures do not apply to our arbitration.
Controlling Law and Forum Selection: You agree that our Service(s) are governed only by the laws of the State of Wisconsin and that any dispute arising between you and us will be determined according to the laws of the State of Wisconsin . You further agree that subject to the provisions regarding binding arbitration that the courts of Milwaukee County, Wisconsin shall be the only court forums for any legal action or proceeding relating to the Service(s) we provide and/or this Agreement; and that you specifically and expressly agree to submit to the exclusive jurisdiction of the courts of the County of Milwaukee, State of Wisconsin, if the dispute is not governed by the provisions regarding binding arbitration.
No Waiver: Our action or inaction in not requiring your performance of any provision hereof shall not affect our right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19. Assignment.
This TOS and the rights and licenses it grants or receives may be assigned or transferred by Fliptube without restriction.
20. Miscellaneous.
Notice: Notices to you will be deemed given when they are personally delivered, or when they are addressed to you at your last known address and deposited in the United States Mail (Notices may be included with your billing statement), or when they are sent via Internet to the e-mail address you provide us, or when they are delivered via a voice message left at the telephone number you provide us for your account. Your notices to us will be deemed given when we receive them at the address on the first page of this Agreement.
Monitoring: We have the right, but not the obligation, to monitor any activity and content associated with our Services. In our sole discretion, we may monitor your account and/or investigate any complaint or reported violation of our policies, and take any action we deem appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of Service, and/or denying access to Services.
Assignment of Account: We may assign your account or this Agreement and all rights and/or obligations hereunder to any third party without notice for any purpose, including, without limitation, collection of unpaid amounts, or in the event of an acquisition, corporate reorganization, merger or sale of substantially all of the party's assets to another entity. You hereby consent to such assignment. You must continue making all required payments to us in accordance with your Agreement for the Service and billing statement, unless notified otherwise.
Entire Agreement and Severability: This Agreement and any lease, activation, programming, or other service commitment agreement that you entered into in connection with Service(s) provided by us constitute our entire agreement. No salesperson or other representative is authorized to change it. If any part of this Agreement is found to be unenforceable or unlawful, then that provision shall be deemed severable from the remaining terms and conditions and shall not affect the validity and/or enforceability of any remaining provisions. The terms of this Agreement that expressly or by their nature survive termination shall continue thereafter until fully performed.
This TOS is subject to change without notice. Some restrictions may apply.
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