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Welcome to webFlutter Media Corp. the provider of the webFlutter website and application (“webFlutter," “we," or “us"). This page explains the terms by which you may use our website, application software and service through your browser or mobile device (collectively our “App"). IMPORTANT! AS WITH ALL CONTRACTS, IF YOU ARE UNDER THE AGE OF 18, YOU MUST HAVE YOUR PARENT OR GUARDIAN READ THE AGREEMENT BELOW AND AGREE TO IT FOR YOU. IF YOU DON’T GET YOUR PARENT OR GUARDIAN TO READ AND AGREE TO THIS, YOU DON’T HAVE PERMISSION TO USE THIS SITE. PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY DOWNLOADING, ACCESSING OR USING THE APP, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS APP.
These terms and conditions of use ("Terms") apply exclusively to your access to, and use of, the App. These Terms do not alter in any way the terms or conditions of any other agreement you may have with webFlutter, or its subsidiaries or affiliates, for products, services or otherwise. If you are using the App on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf, and that such entity agrees to indemnify you and webFlutter for violations of these Terms.
webFlutter reserves the right to change or modify any of the terms and conditions contained in these Terms or any policy or guideline of the App, at any time and in its sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the App. Your continued use of this App following the posting of its changes or modifications will constitute your acceptance of such changes or modifications. You should frequently review these Terms and applicable policies from time-to-time to understand the terms and conditions that apply to your use of the App. If you do not agree to the amended terms, you must stop using the App.
webFlutter provides an App for you to create a personalized video messages by sequencing your photos or other images, and if you choose, to add music, narration, or other sound to accompany your message (a “Flutter”).
You may use the App only if you can form a binding contract with webFlutter, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. ANY USE OR ACCESS TO THE APP BY ANYONE UNDER 13 IS STRICTLY PROHIBITED AND IN VIOLATION OF THESE TERMS. The App is not available to any Users previously removed from the App by webFlutter.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the App for your utilization as a Business Subscriber or a Personal User, and only in accordance with the features of the App as it is marketed by webFlutter. webFlutter reserves all rights not expressly granted herein in the App and the webFlutter IP (as defined below). webFlutter may terminate this license at any time for any reason or no reason.
a. Business Subscriber Accounts. Business Subscribers are businesses, brands or individuals who have paid webFlutter for our services and entered into a Business Subscriber Agreement to be a user on the webFlutter platform to be able to create video messages in a personalized custom Message Animation Background, (“MAB”), to communicate with a video message. A Business Subscriber uses the App for commercial purposes with all necessary rights and licenses to the User Content.
b. Personal User Accounts. Personal Users are individual consumer users who create Flutters which may or may not contain a Business Subscriber’s MAB, and send and share them at no charge. A Personal User uses the App for non-commercial purposes with all necessary rights and licenses to the User Content.
c. Business Subscribers and Personal Users are referred to collectively as “Users”Your webFlutter account gives you access to the App and functionality that we may establish and maintain from time to time and in our sole discretion. By connecting to webFlutter with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account. You must notify webFlutter immediately of any breach of security or unauthorized use of your account. webFlutter will not be liable for any losses caused by any unauthorized use of your account.
You may control your User profile and how you interact with the App by changing the settings in the App. By providing webFlutter your email address you consent to our using the email address to send you App-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address and/or phone number to send you other messages, such as changes to features of the App and special offers and notifications.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the App in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the App in a manner that sends more request messages to the webFlutter servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the App; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the App; (vii) collecting or harvesting any personally identifiable information, including account names, from the App; (viii) using the App for any commercial purposes without entering into a Business Subscriber Agreement with webFutter and having all necessary rights and licenses to the User Content; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the App; (xi) accessing any content on the App through any technology or means other than those capabilities provided by the App; or (xii) bypassing the measures we may use to prevent or restrict access to the App, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the App or the content therein.
We may, without prior notice, change the App, stop providing the App or features of the App, to you or to Users generally, or create usage limits for the App. We may permanently or temporarily terminate or suspend your access to the App, or delete any User Content (as defined below), without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
You are solely responsible for your conduct and any data, text, files, information, images, photos, audio and video clips, sound recordings, musical works, narration, works of authorship, links and other content or materials that you submit, post or display on or via our App. webFlutter shall have no liability for conduct in relation to your use of our App. Our Services are available on mobile devices. Do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.
Some areas of the App provide Users the capability to create, share and post content such as profile information, photographs, videos, images, musical works, sound recording, narration, text and other material used to create a Flutter, comments, questions, and other material or information (any such materials a User provides, shares, submits, displays, or otherwise creates using the App, including the Flutter created by the User, are “User Content”). Users grant webFlutter the license set forth on Section 3 below.
Users agree not to post, store, transmit, create or share any User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); or (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships. User agrees that any User Content that User creates, stores, or shares does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. webFlutter reserves the right, but is not obligated, to reject and/or remove any User Content that webFlutter believes, in its sole discretion, violates these provisions.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, User affirms, represents and warrants the following:
If you share your User Content with webFlutter or link your User Content to webFlutter on a third party service (including, for example, by using the tag #webFlutter on any social media network site other any other messaging or email platform, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to webFlutter a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for commercial and non-commercial use in connection with the App and webFLutter’ s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of our App (and derivative works thereof) in any media formats and through any media channels. User hereby forever waives and agrees not to assert against webFlutter, its successors and assigns or licensees or sublicensees, any right to object to any distortion or other modification of the User Content, and any other rights with respect to the User Content that may be known as or referred to as "moral rights.” User waives any right to have the User Content attributed to User or to prevent the same from being modified, edited, transformed, or otherwise adapted as webFlutter may deem necessary or appropriate.
We may make available software to access the App via a mobile device (“Mobile Software”). To use the Mobile Software, you must have a mobile device that is compatible with the Mobile Software. webFlutter does not warrant that the Mobile Software will be compatible with your mobile device. webFlutter hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that webFlutter may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and webFlutter or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. webFlutter reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in these Terms and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the webFlutter App.
The App contains material owned or licensed by webFlutter (“webFlutter IP"). webFlutter IP may be protected by copyright, trademark, patent, trade secret and other laws, and as between you and webFlutter, webFlutter owns and retains all rights in the webFlutter IP. You will not remove, alter, or conceal any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the App and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the App. The webFlutter name and logos are trademarks of webFlutter, and may not be copied, imitated or used, in whole or in part, without the prior written permission of webFlutter. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of webFlutter, and may not be copied, imitated or used, in whole or in part, without prior written permission from webFlutter. You may choose to or we may invite you to submit comments or ideas about the App, including without limitation about how to improve the App or our products (“Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place webFlutter under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, webFlutter does not waive any rights to use similar or related ideas previously known to webFlutter, or developed by its employees, or obtained from sources other than you.
webFlutter cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
webFlutter respects other people’s rights and we expect you to do the same.
Since we respect artist and content owner rights, it is webFlutter’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA").
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is located on the App, please notify webFlutter’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent: DMCA Notice
webFlutter Media . Corporation Address: 100 Franklin Square Drive, Suite 207 Somerset NJ 08873
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. Please note that this procedure is exclusively for notifying webFlutter and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with webFlutter’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, webFlutter has adopted a policy of terminating, in appropriate circumstances and at webFlutter’s sole discretion, Users who are deemed to be repeat infringers. webFlutter may also at its sole discretion limit access to the App and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement
In addition, the App may incorporate certain third-party materials, including but not limited to software, which may be subject to separate terms and conditions, which we will make available to you if applicable.
You agree to defend, indemnify and hold harmless webFlutter and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the App, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content, including without limitation any User Content, or any that is created, stored, shared or submitted via your account; or (vi) any other party’s access and use of the App with your unique username, password or other appropriate security code.
THE APP IS PROVIDED ON AN “AS IS" AND “AS AVAILABLE" BASIS. USE OF THE APP IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WEBFLUTTER OR THROUGH THE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WEBFLUTTER, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE APP WILL MEET YOUR REQUIREMENTS; THAT THE APP WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE APP IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE APP.
WEBFLUTTER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBFLUTTER APP OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WEBFLUTTER IS NOT OBLIGATED TO BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
WEBFLUTTER IS NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS APP. UNDER NO CIRCUMSTANCES WILL WEBFLUTTER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE APP OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WEBFLUTTER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR APP; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR APP BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE APP; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WEBFLUTTER, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO WEBFLUTTER HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WEBFLUTTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The App is controlled and operated from facilities in the United States. webFlutter makes no representations that the App is appropriate or available for use in other locations. Those who access or use the App from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the App if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the App are solely directed to individuals, companies, or other entities located in the United States.
1. Governing Law. You agree that: (i) the App shall be deemed solely based in New Jersey; and (ii) the App shall be deemed a passive one that does not give rise to personal jurisdiction over webFlutter, either specific or general, in jurisdictions other than New Jersey. This Agreement shall be governed by the internal substantive laws of the State of New Jersey, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New Jersey for any actions for which we retain the right to seek injunctive or other equitable relief in court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that the Superior Court of the State of New Jersey, Essex County, or the US District Court for the District of New Jersey is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
2. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WEBFLUTTER.
webFlutter, you agree to first contact us at support@webFlutter.com and attempt to resolve the dispute with us informally. In the unlikely event that webFlutter has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims"), by binding arbitration by Judicial Arbitration and Mediation Services (“JAMS"), under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New Jersey, unless you and webFlutter agree otherwise. If you are using the App for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the App for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing webFlutter from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
3. Class Action/Jury Trial Waiver. REGARDLESS OF WHETHER YOU HAVE OBTAINED OR USED THE APP FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND WEBFLUTTER WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT YOU AND WEBFLUTTER WAIVE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR WEBFLUTTER WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT. YOU ALSO AGREE NOT TO PARTICIPATE IN CLAIMS BROUGHT BY A PRIVATE ATTORNEY GENERAL OR IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT.
1. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by webFlutter without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
3. Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with webFlutter in connection with the App, shall constitute the entire agreement between you and webFlutter concerning the App. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
4. No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and webFlutter’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
5. Contact. Please contact us support@webFlutter.com with any questions regarding these Terms.
WE WILL USE REASONABLE SKILL AND CARE IN PROVIDING OUR SERVICES TO YOU AND IN KEEPING IT A SAFE, SECURE, AND ERROR-FREE ENVIRONMENT, BUT WE DO NOT GUARANTEE THAT webFlutter WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. YOU USE OUR SERVICES AT YOUR OWN RISK AND SUBJECT TO THE FOLLOWING DISCLAIMERS. WE ARE PROVIDING OUR SERVICES ON AN "AS IS" BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL CODE. WE DO NOT WARRANT THAT ANY INFORMATION PROVIDED BY US IS ACCURATE, COMPLETE, OR USEFUL, THAT OUR SERVICES WILL BE OPERATIONAL, ERROR FREE, SECURE, OR SAFE, OR THAT OUR SERVICES WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. WE DO NOT CONTROL AND ARE NOT RESPONSIBLE FOR, CONTROLLING HOW OR WHEN OUR USERS USE OUR SERVICES OR THE FEATURES, SERVICES, AND INTERFACES OUR SERVICES PROVIDE. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES. YOU RELEASE US, OUR SUBSIDIARIES, AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AND AGENTS (TOGETHER, THE " webFlutter PARTIES") FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, OR CONTROVERSY (TOGETHER, "CLAIM") AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES. YOUR RIGHTS WITH RESPECT TO webFlutter ARE NOT MODIFIED BY THE FOREGOING DISCLAIMER IF THE LAWS OF YOUR COUNTRY OF RESIDENCE, APPLICABLE AS A RESULT OF YOUR USE OF OUR SERVICES, DO NOT PERMIT IT. IF YOU ARE A UNITED STATES RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.