FLYERTOSS, Inc. ("FLYERTOSS") provides advertisers, vendors, and manufacturers the opportunity to post flyers, circulars, manuals, and other materials through its website, programs and computer servers. By accessing or using FLYERTOSS, you are a "user" and you accept and agree to the terms below (the "TEMRS") as a legal contract between you and FLYERTOSS. The TERMS also include and incorporate additional terms ("GUIDELINES”) applicable to particular areas, items and categories available on FLYERTOSS as set forth to users upon access to FLYERTOSS’s website. FLYERTOSS may post changes to the TERMS at any time, and any such changes will be applicable to all subsequent access to or use of FLYERTOSS website. If you do not accept and agree to all provisions of the TERMS, now or in the future, you may reject the TERMS by immediately terminating all access and use of FLYERTOSS. Should you not accept these TERMS any access or use of the FLYERTOSS website is expressly unauthorized.
You are also required to comply with, and to ensure compliance with, all laws, ordinances and regulations applicable to your activities on FLYERTOSS. FLYERTOSS is intended and designed for users 18 years of age and older. Access or use of FLYERTOSS by anyone under the age of 18 is not authorized. The TERMS grant you a limited, revocable, nonexclusive license to access FLYERTOSS and use FLYERTOSS, in whole or in part, including but not limited to FLYERTOSS intellectual property therein, solely in compliance with the TERMS. "FLYERTOSS" and "FLYERTOSS, INC." are trademarks of FLYERTOSS and are protected by United States and international laws.
The TERMS do not authorize you to use "FLYERTOSS," "FLYERTOSS, INC." or any similar or related marks for any use pertaining to classified advertising, Internet advertising, social networks, online forums, online communication services or any similar or related use, or any other use that is likely to cause confusion on the part of, to cause mistake by or to deceive the public as to any affiliation, connection, association, origin, sponsorship, approval or endorsement by or with FLYERTOSS.TERMS1.
LIMITATIONS OF LIABILITY. FLYERTOSS AND ANY OF ITS DIRECTORS, OFFICERS, STOCKHOLDERS, EMPLOYEES, CONSULTANTS, AGEENTS AND REPRESENTATIVES (COLLECTIVELY HEREINAFTER REFERRED TO AS “REPRESENTATIVES”) SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY ACCESS TO, USE OF OR RELIANCE ON FLYERTOSS OR CONTENT OR MATERIAL ACCESSED THROUGH FLYERTOSS BY YOU OR ANYONE ELSE, OR FOR ANY TRANSACTIONS, COMMUNICATIONS, INTERACTIONS, DISPUTES OR RELATIONS BETWEEN YOU AND ANY OTHER PERSON OR ORGANIZATION ARISING OUT OF OR RELATED TO THE USE OF OR ACCESS TO FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS, INCLUDING BUT NOT LIMITED TO LIABILITY FOR INJUNCTIVE RELIEF AS WELL AS FOR ANY HARM, INJURY, LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU OR ANYONE ELSE (INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY OR PUNITIVE DAMAGES), EVEN IF FLYERTOSS OR ANY OF ITS REPRESENTATIVE(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF, BUT IS NOT RESTRICTED TO, WHETHER THE ALLEGED LIABILITY, HARM, INJURY, LOSS OR DAMAGES AROSE FROM AUTHORIZED OR UNAUTHORIZED:
A ACCESS TO OR USE OF FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS ; OR
B. ANY INABILITY TO ACCESS OR USE FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS; OR
C. ANY REMOVAL, DELETION, LIMITATION, MODIFICATION, INTERRUPTION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES RESULTING FROM ANY INFORMATION, MATERIAL, TRANSACTIONS OR POTENTIAL TRANSACTIONS, GOODS OR SERVICES PURCHASED, INFORMATION OR ADVICE OFFERED OR EXCHANGED, OR OTHER CONTENT, INTERACTIONS, REPRESENTATIONS, COMMUNICATIONS OR RELATIONS THROUGH, RELATED TO OR AS A RESULT OF FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS (INCLUDING, BUT NOT LIMITED TO, ANY LINKS ON FLYERTOSS AND LINKS IN CONTENT ACCESSED THROUGH FLYERTOSS).2. RELEASE OF ALL CLAIMS.
You hereby release FLYERTOSS and each of its REPRESENTATIVES, and their respective subsidiaries, affiliates, successors, predecessors, assigns, and heirs, from any and all claims, causes of actions, demands and damages of every kind and nature, known and unknown, direct and indirect, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to FLYERTOSS or content accessed through FLYERTOSS, or any interactions with others arising out of or related to FLYERTOSS or content accessed through FLYERTOSS.
You expressly waive the provisions of California Civil Code Section 1542 (and any similar laws in other jurisdictions), which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY .3. DISCLAIMERS. YOUR ACCESS TO, USE OF AND RELIANCE ON FLYERTOSS AND CONTENT ACCESSED THROUGH FLYERTOSS IS ENTIRELY AT YOUR OWN RISK. FLYERTOSS (INCLUDING, BUT NOT LIMITED TO, THE WEBSITE AND CONTENT ACCESSED THROUGH THE WEBSITES) IS PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) ARE EXPRESSLY DISCLAIMED.
WITHOUT LIMITING THE FOREGOING, FLYERTOSS ALSO DISCLAIMS ALL WARRANTIES FOR OR WITH RESPECT TO: (a) THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF FLYERTOSS AND CONTENT ACCESSED THROUGH FLYERTOSS; (b) COMPUTER WORMS, VIRUSES, SPYWARE, ADWARE AND ANY OTHER MALWARE, MALICIOUS CODE OR HARMFUL CONTENT OR COMPONENTS ACCESSED, RECEIVED OR DISSEMINATED THROUGH, RELATED TO OR AS A RESULT OF FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS; (c) ANY TRANSACTIONS OR POTENTIAL TRANSACTIONS, GOODS OR SERVICES PURCHASED, INFORMATION OR ADVICE OFFERED OR EXCHANGED, OR OTHER CONTENT, INTERACTIONS, REPRESENTATIONS OR COMMUNICATIONS THROUGH, RELATED TO OR AS A RESULT OF USE OF FLYERTOSS OR CONTENT ACCESSED THROUGH FLYERTOSS (INCLUDING, BUT NOT LIMITED TO, ACCESSED THROUGH ANY LINKS ON FLYERTOSS.) THESE DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Some jurisdictions do not allow disclaimers of implied warranties. In such jurisdictions, some of the foregoing disclaimers as to implied warranties may not apply.4. REGULATION OF CONTENT AND MATERIAL. FLYERTOSS has the absolute right, but not the obligation to:
A. Regulate, prohibit and restrict content (which includes but is not limited to flyers, circulars, manuals, and other materials. postings, text, images, video, ads, emails, messages and any other user communications posted to, stored on or transmitted via FLYERTOSS by any user (or any other third party in any manner);
B. Regulate conduct (including but not limited to any authorized or unauthorized access to or use of FLYERTOSS) by any user (or any other third party in any manner); and
C. Enforce the TERMS, for any reason and in any manner or by any means that FLYERTOSS, in its sole discretion, deems necessary or appropriate (including but not limited to automated and manual screening, blocking, filtering, and the deletion and/or termination of content, accounts and/or all or any use or access). FLYERTOSS may, in its sole discretion and without notice, start, stop or modify any regulation or enforcement measures at any time.
FLYERTOSS’ action or inaction to regulate content or conduct or to enforce against any potential violation of the TERMS by any user (or any other third party) does not waive FLYERTOSS's right to implement or not implement regulation or enforcement measures with respect to any subsequent or similar content, conduct or potential TERMS violation. You also understand and agree that any action or inaction by FLYERTOSS to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential TERMS violation is undertaken voluntarily and in good faith, and you expressly agree that neither FLYERTOSS nor any REPRESENTATIVE shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of the TERMS.
Although FLYERTOSS and/or its REPRESENTATIVES may regulate, delete and modify content and , conduct on FLYERTOSS at FLYERTOSS's sole and absolute discretion. REPRESENTATIVES have no authority to make binding commitments, promises or representations to anyone that they or anyone else on behalf of FLYERTOSS will correct, rectify, resolve or otherwise deal with any alleged problem or complaint, or that they or anyone else on behalf of FLYERTOSS will otherwise stop, cure or prevent any problem, content, conduct or purported TERMS violation from occurring or recurring. Accordingly, you further agree that any representation (written or verbal) by any REPRESENTATIVE (or by anyone else acting on behalf of FLYERTOSS or by anyone purportedly acting on behalf of FLYERTOSS) that FLYERTOSS (including but not limited to any REPRESENTATIVE, anyone else acting on behalf of FLYERTOSS, or anyone purportedly acting on behalf of FLYERTOSS) would or would not prevent, restrict, redress or regulate content (including, but not limited to, screen, block, moderate, review, remove, terminate, delete, edit or otherwise stop, cure or exclude any content), or to implement other enforcement measures against any content, conduct or potential or purported TERMS violation is superseded by this provision and is nonbinding and unenforceable.
Specifically, you agree that FLYERTOSS, its REPRESENTATIVES, and anyone else authorized to act on behalf of FLYERTOSS shall in no circumstance be liable as a result of any representation that FLYERTOSS, or its REPRESENTATIVES or anyone else on behalf of FLYERTOSS would or would not restrict or redress any content, conduct or potential or purported TERMS violation. This paragraph may not be modified, waived or released except by a written agreement, dated and signed by FLYERTOSS' CEO and dated and signed by the individual or entity to whom the modification, waiver or release is granted. FLYERTOSS also has the right in its sole discretion to limit, modify, interrupt, suspend or discontinue all or any portions of FLYERTOSS at any time without notice.
FLYERTOSS and its REPRESENTATIVES shall not be liable for any such limitations, modifications, interruptions, suspensions or discontinuance, or any purported losses, harm or damages arising from or related thereto.5. CONTENT. FLYERTOSS is not responsible for and makes no representations or warranties with respect to any user content. You are solely responsible for your access to, use of and/or reliance on any user content. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research, and due diligence with respect to any user content. You are also responsible for any content that you request FLYERTOSS to post. You are responsible for all content you request be posted by FLYERTOSS. Content prohibited from FLYERTOSS includes but is not limited to:
(1) illegal content;
(2) content in facilitation of the creation, advertising, distribution, provision or receipt of illegal goods or services;
(3) offensive content (including but not limited to defamatory, threatening, hateful or pornographic content) as determined solely and exclusively by FLYERTOSS and its REPRESENTATIVES (any such determination by FLERTOSS and/or its REPRESENTATIVES shall be final);
(4) content that discloses another's personal, confidential or proprietary information;
(5) false or fraudulent content (including but not limited to false, fraudulent or misleading responses to user ads transmitted via FLYERTOSS);
(6) malicious content (including, but not limited to, malware or spyware);
(7) content that offers, promotes, advertises, or provides links to posting or auto-posting products or services, account creation or auto-creation products or services, or any other product or service that if utilized with respect to FLYERTOSS would violate these TERMS or FLYERTOSS' other legal rights; and (8) content that offers, promotes, advertises or provides links to unsolicited products or services. You automatically grant and assign to FLYERTOSS, and you represent and warrant that you have the right to grant and assign to FLYERTOSS, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable, worldwide license to copy, perform, display, distribute, prepare derivative works from (including, but not limited to, incorporating into other works) and otherwise use any content that you request be placed on FLYERTOSS.
You further expressly grant and assign to FLYERTOSS all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you request FLERTOSS post. You agree to indemnify and hold FLYERTOSS and its REPRESENTATIVES harmless from and against any third-part claim(s), cause(s) of action, demand or damages related to or arising out of:
(a) content that you request FLYERTOSS post (including but not limited to content that a third-party deems defamatory or otherwise harmful or offensive); (b) activity that occurs through or by use of material your request FLYERTOSS post (including, but not limited to, all content posted or transmitted);
(c) your use of or reliance on any user content; and (d) your violation of the TERMS. This indemnification obligation includes payment of any attorneys' fees and costs incurred by FLYERTOSS or its REPRESENTATIVES. 6. CONDUCT. FLYERTOSS does not control, is not responsible for and makes no representations or warranties, with respect to any user or user conduct.
You are solely responsible for your interaction with or reliance on any user or user conduct. You must perform any necessary, appropriate, prudent or judicious investigation, inquiry, research, and due diligence with respect to any user or user conduct. You are also responsible for your own conduct and activities on, through or related to FLYERTOSS. If you request FLYERTOSS post any flyer, material, or content on FLYERTOSS, you are fully responsible for all conduct or activities arising from or out of the posting you requested FLYERTOSS make for you or on your behalf.
You agree to indemnify and hold FLYERTOSS and its REPRESENTATIVES harmless from and against any third-party claim(s), cause(s) of action, demand or damages related to or arising out of your own conduct or activities on, through or related to FLYERTOSS, and related to or arising out of any conduct or activities on, through or by your use of FLYERTOSS , if any. This indemnification obligation includes payment of any attorneys' fees and costs incurred by FLYERTOSS or FLYERTOSS Representatives.7. POSTING. This section 7 applies to all uses and users of FLYERTOSS, unless FLYERTOSS has specifically authorized, in writing, an exception to a particular term for a particular user. FLYERTOSS has sole and absolute discretion to authorize or deny any exception or exceptions to the terms in this section 7. Users may not circumvent any technological measure implemented by FLYERTOSS to restrict the manner in which FLYERTOSS posts content on FLYERTOSS or to regulate the manner in which content (including but not limited to email) may be transmitted to other users.
This prohibition includes, but not limited to, a ban on the use of multiple email addresses (created via an email address generator or otherwise); the use of multiple IP addresses via proxy servers, modem toggling, or otherwise. 8. UNAUTHORIZED ACCESS AND ACTIVITIES. Section 8 applies to all uses and users of FLYERTOSS, unless FLYERTOSS has specifically authorized, in writing, an exception to a particular term for a particular user. FLYERTOSS has sole and absolute discretion to authorize or deny any exception or exceptions to the terms contained in section 8. To maintain the integrity and functionality of FLYERTOSS for its users, access to FLYERTOSS and/or activities related to FLYERTOSS that are harmful to, inconsistent with or disruptive of FLYERTOSS and/or its users' beneficial use and enjoyment of FLYERTOSS are expressly prohibited.
For example, but not limited to: The collection of FLYERTOSS users' personal information (including but not limited to email addresses, IP addresses and telephone numbers) is not allowed for any purpose. Any copying, aggregation, display, distribution, performance or derivative use of FLYERTOSS or any content posted on FLYERTOSS whether done directly or indirectly through any form of intermediary is expressly prohibited. As a limited exception, general purpose Internet search engines and noncommercial public archives will be entitled to access FLYERTOSS without individual written agreements executed with FLYERTOSS that specifically authorize an exception to this prohibition if, in all cases and individual instances:
(a) they provide a direct hyperlink to the relevant FLYERTOSS website, service, forum or content;
(b) they access FLYERTOSS from a stable IP address using an easily identifiable agent; and
(c) they comply with all applicable FLYERTOSS policies; provided however, that FLYERTOSS may terminate this limited exception as to any search engine or public archive (or any person or entity relying on this provision to access FLYERTOSS without their own written agreement executed with FLYERTOSS), at any time and in its sole discretion, upon written notice, including, but not limited to, by email notice.
Any access to or use of FLYERTOSS to design, develop, test, update, operate, modify, maintain, support, market, advertise, distribute or otherwise make available any program, application or service (including, but not limited to, any device, technology, product, computer program, mobile device application, website, or mechanical or personal service) that enables or provides access to, use of, operation of or interoperation with FLYERTOSS (including, but not limited to, to access content, post content, cross-post content, re-post content, respond or reply to content, verify content, transmit content, create accounts, verify accounts, use accounts, circumvent and/or automate technological security measures or restrictions, or flag content) is prohibited.
This prohibition specifically applies but is not limited to software, programs, applications and services for use or operation on or by any computer and/or any electronic, wireless and/or mobile device, technology or product that exists now or in the future. If you access FLYERTOSS or copy, display, distribute, perform or create derivative works from FLYERTOSS and/or its webpages or other FLYERTOSS intellectual property in violation of the TERMS or for purposes inconsistent with the TERMS, your access, copying, display, distribution, performance or derivative work is expressly unauthorized.
Circumvention of any technological restriction or security measure on FLYERTOSS or any provision of the TERMS that restricts content, conduct, accounts or access is expressly prohibited. For purposes of this paragraph, you agree that cached copies of FLYERTOSS webpages on your computer or computer server constitute "copies" under the Copyright Act, 17 U.S.C. § 101. For purposes of this paragraph, you further agree that CAPTCHAs and telephone verification are "technological measures" that effectively control access to copyright-protected components and rights of FLYERTOSS pursuant to 17 U.S.C. § 1201 Any effort to decompile, disassemble or reverse engineer all or any part of FLYERTOSS in order to identify, acquire, copy or emulate any source code or object code is expressly prohibited.
Any activities that are inconsistent with use of FLYERTOSS in compliance with the TERMS or that may impair or interfere with the integrity, functionality, performance, usefulness, usability, or quality of all or any part of FLYERTOSS in any manner are expressly prohibited. Any attempt (whether or not successful) to engage in, or to enable, induce, encourage, cause or assist anyone else to engage in, any of the above unauthorized and prohibited access and activities is also expressly prohibited and is a violation of the TERMS.9. USER TRANSACTIONS AND DISPUTES. FLYERTOSS and its REPRESENTATIVES are not parties to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, person or organization ("your interactions with others").
You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research, and due diligence with respect to your interactions with others. You agree to indemnify and hold FLYERTOSS and its REPRESENTATIVES harmless from and against any third-party claim(s), cause(s) of action, demand or damages related to or arising out of your interactions with others. This indemnification obligation includes payment of any attorneys' fees and costs incurred by FLYERTOSS or its REPRESENTATIVES.10. FEES. FLYERTOSS charges a fee to post content. You are responsible to FLYERTOSS for any fees applicable to content that you request FLYERTOSS post. [M1] You authorize FLYERTOSS, or its designated payment processor, to charge your specified credit card, debit card or other payment method for such fees.
Unless otherwise specified, all fees are in United States dollars and all charges will be made in United States dollars. Any applicable sales or other taxes are additional to the stated fee. Currency exchange settlements and foreign transaction fees are based on your agreement with your credit card or other payment method provider. Except as required by law, all fees are nonrefundable, including, but not limited to, in situations where paid posts are removed by FLYERTOSS. Payments and purchases may not be canceled by the user, except as required by law. However, FLYERTOSS reserves the right to refuse or terminate any post or posting at any any time in its sole discretion.
You understand and agree that if you authorize a payment transaction with your credit card, debit card or other payment method, but your charge is rejected for any reason, there may be a several day hold on material or content you desire to post on FLYERTOSS.11. NOTIFICATION OF CLAIMS OF INFRINGEMENT. If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights (including trademark rights) have been otherwise violated, please follow the directions for written notice at: www.flyertoss.com/admin12. INJUNCTIVE RELIEF You acknowledge and agree that any violation or breach of the TERMS may cause FLYERTOSS immediate and irreparable harm and damages; consequently, notwithstanding any other provision of the TERMS or other applicable legal requirements, FLYERTOSS has the right to, and may in its discretion, immediately obtain preliminary injunctive relief (including, but not limited to, temporary restraining orders) and seek permanent injunctive relief regarding any violation or breach of the TERMS.
The decision of the arbitrator shall be final, and judgment upon the arbitral award may be entered in any court having jurisdiction thereof. Thearbitration provided herein is the sole way in which the aforesaid disputes, claims or controversies shall be resolved, and each party waives its right to initiate judicial proceedings, including without limitation trial by jury. The parties shall participate in good faith in all arbitration proceedings. The venue of the mediation or arbitration proceeding shall be Sacramento County, CA. The fees and expenses of the mediation or arbitration proceeding established by the AAA (including the fees of the mediator and arbitrator) shall be shared equally by the parties. Each party shall pay its own expenses (including without limitation attorneys’ fees and costs and expenses of preparation and presentation of proofs), except that the prevailing party in any arbitration proceeding shall be entitled to an award of reasonable attorneys’ fees and costs.
A. Entire Agreement. These TERMS constitute the entire agreement between you and FLYERTOSS and supersede any prior written or oral agreement. Other than the FLYERTOSS Representatives (who are expressly included as named third-party beneficiaries of the TERMS), there are no third-party beneficiaries to the TERMS.
B. Choice of Law. Any and all claims, causes of action or disputes (regardless of theory) between you and FLYERTOSS arising out of or related to the TERMS, FLYERTOSS or content accessed through FLYERTOSS shall be governed by the laws of the State of California without regard to conflict or choice of law principles.
c. Venue. You and FLYERTOSS agree that any such claims, causes of action or disputes shall be brought exclusively in courts located within the county of Sacramento, California, and you and FLYERTOSS agree to submit to the personal and exclusive jurisdiction of such courts.
d. Time Limitation for Actions and Claims. You further agree that, regardless of any statute or law to the contrary, you must file any such claims or causes of action within one year after such claim or cause of action arose or be forever barred.
e. Severability. If any provision of the TERMS is found by a court of competent jurisdiction to be unenforceable, all other provisions of the TERMS shall remain in full force and effect.