FluxNinja Terms of Service
Last Updated: [Sept 12,2022]
Welcome, and thank you for your interest in FluxNinja, Inc. (“FluxNinja,” “we,” or “us”) and our website at FluxNinja, Inc, along with our related websites, hosted applications, downloadable applications, APIs, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you (“you” or “Customer”) and FluxNinja regarding your use of the Service. If you are entering into this agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND FLUXNINJA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
The Service consists of the Aperture Cloud service. If you have purchased a Aperture Cloud subscription, which includes a commercial license to use the Aperture Agents and Aperture Controllers (collectively, “Aperture”), those are also considered part of the Service
By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, and, if applicable, the entity on whose behalf you are accepting these Terms. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password or to link to an existing account (e.g., Google or GitHub). You are solely responsible for maintaining the confidentiality of your account and, as applicable, your password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at firstname.lastname@example.org.
Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms.
FluxNinja reserves the right to determine pricing for the Service, including minimum quantities and varied subscription packages, as applicable. FluxNinja will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. FluxNinja may change the fees for any feature of the Service, including additional fees or charges, if FluxNinja gives you advance notice of changes before they apply. FluxNinja, at its sole discretion, may make promotional offers with different features and different pricing to any of FluxNinja’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
You authorize FluxNinja to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by FluxNinja, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then FluxNinja may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Subscription Service
The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize FluxNinja or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our pricing page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service at least 30 days before the renewal date in order to avoid billing of the next periodic Subscription Fee to your account. FluxNinja or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service via our user interface or by contacting us at email@example.com. YOUR CANCELLATION MUST BE RECEIVED AT LEAST 30 DAYS BEFORE THE RENEWAL DATE IN ORDER TO AVOID A CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
4.4 Delinquent Accounts
FluxNinja may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then FluxNinja reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
5.1. License to Aperture Cloud Subject to your complete and ongoing compliance with these Terms, including any usage limits applicable to your subscription, FluxNinja grants you, solely for your personal use and for the duration of your applicable subscription, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use Aperture Cloud.
5.2. License to Aperture
a. Commercial License. Subject to your complete and ongoing compliance with these Terms, including any usage limits applicable to your subscription, FluxNinja grants you, solely for your personal use and for the duration of your applicable subscription, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use Aperture (including any updates, fixes, patches, and new releases) in object code form only, on servers (including in your cloud) and other devices that you own or control.
b. Open-Source License. If you do not have an active subscription to Aperture Cloud, Aperture is not considered part of the "Service" for the purposes of these Terms and is free software, which means you can use it under the terms of the Apache License 2.0 as published by the Apache Software Foundation. This is a permissive license whose main conditions require preservation of copyright and license notices. Contributors provide an express grant of patent rights. Licensed works, modifications, and larger works may be distributed under different terms and without source code. Learn more here: https://www.apache.org/licenses/LICENSE-2.0
a. License. If your subscription includes access to FluxNinja’s application programming interface (“API”), subject to your complete and ongoing compliance with these Terms, including any usage limits applicable to your subscription, FluxNinja grants you, solely for your personal use, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the API solely as necessary to integrate your products and services with the Service and solely in accordance with any API documentation made available by FluxNinja.
b. API License Restrictions. You agree that: (a) all use of the APIs by you will be in compliance with any API documentation made available by FluxNinja, including any rate and concurrency limits to API calls as determined by FluxNinja; (b) you will not engage in forking or extending or otherwise attempt to modify or reverse engineer the APIs; (c) the APIs shall not be used to access any products or services outside of the Service; (d) you will not display or disclose any portion of the APIs to any person except to your employees and contractors who are required to use the APIs in order to develop an application for use with the Service; (e) you will not use the APIs to create or develop any command set, application, or other application programming interface or software that can be used with any service or product other than the Service; (f) you will not interfere with the normal operation of any API; (j) you will not disable or circumvent any security features of the APIs; and (k) you will not cause or permit any third party to do any of the foregoing.
c. Limits. FluxNinja may limit the number or frequency of API requests (both on a per user and a universal basis), or any use of the APIs that could damage, disable, overburden, impair, or otherwise interfere with the APIs.
a. License. If your subscription includes access to FluxNinja’s software development kit (“SDK”), subject to your complete and ongoing compliance with these Terms, including any usage limits applicable to your subscription, FluxNinja grants you, solely for your personal use, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to use the SDK solely as necessary to develop integrations between your products and services and the Service and solely in accordance with any SDK documentation made available by FluxNinja.
b. SDK License Restrictions. You agree that: (a) all use of the SDKs by you will be in compliance with any SDK documentation made available by FluxNinja; (b) the SDKs shall not be used to develop integrations with or access any products or services outside of the Service; (c) you will not display or disclose any portion of the SDKs to any person except to your employees and contractors who are required to use the SDKs in order to develop an application for use with the Service; (d) you will not use the SDKs to create or develop any command set, application, or other software that can be used with any service or product other than the Service; (e) you will not interfere with the normal operation of any SDK; (f) you will not disable or circumvent any security features of the SDKs; and (g) you will not cause or permit any third party to do any of the foregoing.
5.5. License to Documentation. Subject to your complete and ongoing compliance with these Terms, FluxNinja grants you, solely for your personal use, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license to reproduce, without modification, and internally use a reasonable number of copies of any Service-related documentation provided to you by FluxNinja, solely in connection with your internal use of the Service in accordance with these Terms.
5.6. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not, either directly or indirectly through third parties: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service or Documentation; (b) make modifications, translations, or enhancements to the Service or Documentation; (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism; (d) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Service or to access any part of the Service to which you have not been given access by FluxNinja; (e) resell, rent, lease, or sublicense any part of the Service or Documentation; (f) use the Service on a service bureau or application service provider basis; (g) provide, divulge, disclose, or make available to, or permit the use of the Service or Documentation by any third party; (h) remove, alter, or cover any copyright notices or other proprietary rights notices; or (i) permit any third party to do any of the foregoing. If you are prohibited under applicable law from using the Service, then you may not use it.
5.7. Feedback. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant FluxNinja an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
Unless you have an active subscription to a support package, we are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies, and some support subscriptions may only cover a portion of the Service. More information about our support packages is available on our pricing page.
The Service is owned and operated by FluxNinja. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by FluxNinja (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of FluxNinja or its third-party licensors. Except as expressly authorized by FluxNinja, you may not make use of the Materials. There are no implied licenses in these Terms and FluxNinja reserves all rights to the Service and the Materials not granted expressly in these Terms.
8.1. Trial Term and Access. If you have registered for a free trial of the Service, we will provide access to the Service on a trial basis free of charge from the date indicated on the trial registration web page until the earlier of: (a) the end of the free trial period for which you have registered; (b) the start date of any purchased subscriptions ordered by you; or (c) termination by us in our sole discretion (the “Free Trial Period”). If you sign up for a paid subscription, these Terms will continue to govern. Additional trial terms and conditions may appear on the trial registration web page, and any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.
8.2. Automatic Renewal. Access to a free trial may require you to provide authorization for FluxNinja to charge you for a paid subscription to the Service, as provided under Sections 4.2 and 4.3. If you provide such authorization and you do not cancel your subscription prior to the end of the Free Trial Period, you understand that you will be charged for a full subscription.
8.3. DATA DURING TRIALS. ANY DATA YOU PROVIDE TO FLUXNINJA, EITHER THROUGH THE SERVICE OR OTHERWISE, DURING THE FREE TRIAL PERIOD WILL BE PERMANENTLY LOST AT THE CONCLUSION OF THE FREE TRIAL PERIOD UNLESS YOU PURCHASE A SUCCESSIVE SUBSCRIPTION THAT PROVIDES AT LEAST THE SAME LEVEL OF ACCESS AS THE FREE TRIAL OR YOU EXPORT SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD.
8.4. WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, DURING THE FREE TRIAL PERIOD, ACCESS TO THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY, AND WE WILL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICE DURING THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE OUR LIABILITY WITH RESPECT TO ACCESS TO THE SERVICE PROVIDED DURING THE FREE TRIAL PERIOD WILL NOT EXCEED, IN THE AGGREGATE, $100.00. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR ACCESS TO THE SERVICE DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR (C) ANY DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, YOU WILL BE FULLY LIABLE UNDER THESE TERMS TO US AND OUR AFFILIATES AND LICENSORS FOR ANY DAMAGES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICE DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THESE TERMS, AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
9.2. Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
10.1. User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Upload”) content to the Service, including messages, reviews, photos, images, folders, data, text, system information, other information used to provide support, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Upload to the Service, subject to the licenses granted in these Terms.
10.2. Limited License Grant to FluxNinja. By Uploading User Content to or via the Service, you grant FluxNinja a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, display, reproduce, distribute, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed.
10.3. You Must Have Rights to the Content You Upload; User Content Representations and Warranties. You must not Upload User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. FluxNinja disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize FluxNinja and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 10, in the manner contemplated by FluxNinja, the Service, and these Terms;
b. your User Content, and the Uploading or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause FluxNinja to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
10.4. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Upload and will not be in any way responsible or liable for User Content. FluxNinja may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against FluxNinja with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, FluxNinja does not permit infringing activities on the Service.
We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
12.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
12.2. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
12.3. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by FluxNinja;
12.4. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
12.5. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
12.6. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission;
12.7. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or
12.8. attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.
We may, from time to time, change these Terms. Please check these Terms periodically for changes, as revisions will be effective immediately. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service, and you may request termination of your account and a pro-rata refund for any prepaid fees for the unused portion of your subscription by contacting firstname.lastname@example.org. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
14.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 14.2.
a. For Cause. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminates.
b. For Convenience by FluxNinja. In addition, FluxNinja may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination.
c. For Convenience by Customer. You may terminate your account and these Terms upon 30 days’ written notice by contacting customer service at email@example.com.
14.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay FluxNinja any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.7, 7, 10.2, 14.3, 15, 16, 17, 18, and 19 will survive. You are solely responsible for retaining copies of any User Content you Upload to the Service since, upon termination of your account, you may lose access rights to any User Content you Uploaded to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address, or other forms of account verification.
14.4. Modification of the Service. FluxNinja reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. FluxNinja will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. If FluxNinja discontinues a part of the Service for which you have paid, FluxNinja will refund the applicable prepaid fees on a pro-rata basis. You should retain copies of any User Content you Upload to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Uploaded to the Service.
15.1. By Customer. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify FluxNinja, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “FluxNinja Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15.2. By FluxNinja. FluxNinja will: (a) defend, or at its option settle, any claim brought against you by a third party to the extent it alleges that your use (as authorized under these Terms) of any aspect of the Service at the time of the claim constitutes a direct infringement of any intellectual property or proprietary rights of any third party (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by FluxNinja; provided that you provide FluxNinja: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by FluxNinja in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, FluxNinja may, at its sole option and expense: (w) procure for you the right to continue to use the applicable infringing parts; (x) modify the Service to make it non-infringing; (y) replace the affected aspect of the Service with non-infringing technology having materially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate these Terms. Notwithstanding the foregoing, FluxNinja will have no liability to you: (1) for any use of the Service in combination with software, products, or services not provided by FluxNinja; (2) for, or where any infringement arises as a result of, your failure to use the Service in accordance with these Terms; or (3) for any claims for which you have an obligation to indemnity FluxNinja under Section 15.1. This Section 15.2 states FluxNinja's entire liability, and your exclusive remedy, for claims or alleged or actual infringement.
16.1. FluxNinja represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) the execution and performance of these Terms will not conflict with other agreements to which it is bound or violate applicable law.
16.2. EXCEPT AS PROVIDED IN SECTION 16.1, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND FLUXNINJA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FLUXNINJA DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND FLUXNINJA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
16.3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR FLUXNINJA ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FLUXNINJA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
16.4. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 16 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. FluxNinja does not disclaim any warranty or other right that FluxNinja is prohibited from disclaiming under applicable law.
17.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FLUXNINJA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FLUXNINJA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
17.2. EXCEPT AS PROVIDED IN SECTIONS 18.4 AND 18.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FLUXNINJA ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO FLUXNINJA FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$1,000.
17.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18.1. Generally. Except as described in Section 18.2, you and FluxNinja agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FLUXNINJA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2. Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3. Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.org, by calling the JAMS at +1-800-352-5267 or by contacting FluxNinja.
18.4. Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). FluxNinja’s address for Notice is: FluxNinja, Inc., 1212 Broadway Plaza, Suite 2100, Walnut Creek CA, US, 94596. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or FluxNinja may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, FluxNinja will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
18.5. Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your billing address unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. During the arbitration, the amount of any settlement offer made by you or FluxNinja must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
18.6. Arbitration Relief. Except as provided in Section 18.7, the arbitrator can award any relief that would be available if the claims had been brough in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by FluxNinja before an arbitrator was selected, FluxNinja will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
18.7. No Class Actions. YOU AND FLUXNINJA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and FluxNinja agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
18.8. Modifications to this Arbitration Provision. If FluxNinja makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to FluxNinja’s address for Notice of Arbitration, in which case your account with FluxNinja will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.9. Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
19.2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and FluxNinja submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
19.5. Contact Information. The Service is offered by FluxNinja, Inc., located at 1212 Broadway Plaza, Suite 2100, Walnut Creek CA, US, 94596. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
19.6. International Use. The Service is intended for users and website visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19.7 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.