PLEASE READ CAREFULLY, AS THESE ARE THE TERMS AND CONDITIONS THAT YOU AGREE TO BE BOUND BY AND THAT GOVERN YOUR USE OF THE
1. Eligibility and Acceptance of Terms. The Site is neither intended nor designed for children under the age of 13. By accessing or using the Site you represent and warrant that you are at least age 18 or the minimum legal age to enter into an enforceable contract in your resident jurisdiction. If you are under the age of 18, but at least the age of 13, then you represent, warrant and confirm that you possess the legal consent of your parent or legal guardian to access and use the Site. By accessing or using the Site, including, without limitation, by purchasing a product or service via the Site or by submitting, posting, uploading or otherwise transmitting or making available any visual material, link, text, audio, video, information, code, comment or other content or material on or to the Site, you are acknowledging that you have read, understand, and agree, without limitation or qualification, to be bound by these Terms and any revisions thereto. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child the age of 13 or older, then you represent, warrant and confirm that you have reviewed and consent to these Terms and accept full responsibility for your child’s use of the Site, including but not limited to all financial obligations, charges and other liabilities that your child may incur in connection with the use of the Site.
IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING OR USING THE SITE IN ANY MANNER WHATSOEVER AND YOU ARE HEREBY INSTRUCTED TO LEAVE THE SITE IMMEDIATELY.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or entity to these Terms and, in such instance, “you” and “your” will refer and apply to that company or entity. To the extent you do not have such authority, you are prohibited from accessing or using the Site in any manner whatsoever and you are hereby instructed to leave the Site immediately.
2. Additional Terms and Conditions. Certain areas of the Site, including but not limited to the areas of the Site via which you may purchase Flounder Pounder products, may require you to accept additional terms and conditions (collectively, the “Additional Terms”). If there is a conflict between these Terms and any such Additional Terms, the Additional Terms will govern with respect to your use of or access to that area or function of the Site. If there are no Additional Terms, your use of or access to that area or function of the Site will be governed by these Terms.
3. Access and Use of Site. Subject to your full and continuing compliance with these Terms and any Additional Terms, Flounder Pounder grants you a limited, non-exclusive, non-transferable license (with no right to sublicense) to access and use the Site. You agree not to use, copy, adapt, modify, reproduce, republish, disseminate, prepare derivative works based upon, distribute, license, sell, transfer, publicly display or perform, transmit, stream, broadcast or otherwise exploit the Site or the content on or within the Site, except for informational or personal, non-commercial uses or as expressly authorized by Flounder Pounder herein. Flounder Pounder has no obligation to continue to maintain or support the Site in any way, or to provide updates or error corrections to the Site. Your rights under these Terms will terminate immediately and automatically, with or without notice and in Flounder Pounder’s sole discretion, if Flounder Pounder ceases to maintain or support the Site. Flounder Pounder reserves the right to suspend, restrict and/or revoke your access to and use of the Site at any time, with or without cause. You acknowledge that Flounder Pounder has no obligation to monitor your access to or use of the Site or to review or modify any Content (as defined below), but may do so in its sole discretion for the purpose of operating the Site, to ensure compliance with these Terms, or to comply with any applicable law, regulation, requirement or standard.
5. Flounder Pounder Intellectual Property. The Site, its look and feel, and the logos, icons, graphics, insignia, names, marks, features, functions, text, graphics, button icons, phrases, images, audio or video clips or content, data compilations, software, designs or similar items contained on or within the Site and/or the compilation or organization thereof constitute the trade names, trademarks or service marks (registered or unregistered), copyrights, or other intellectual property, proprietary or publicity rights of Flounder Pounder and/or its subsidiaries or affiliates (collectively, the “Flounder Pounder IP”). The Site and the Flounder Pounder IP are protected by trademark, copyright and/or other laws of the United States and foreign countries. Except as expressly provided in these Terms, Flounder Pounder own all right, title and interest in and to the Site and the content therein, including all associated intellectual property and proprietary rights, and to all Flounder Pounder IP. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices on, within or about the Site or Flounder Pounder Social Media. In addition, you agree not to: (i) use, display, mirror or frame the Site or any of the pages or elements on or within the Site, Flounder Pounder’s name, any Flounder Pounder IP, or the layout and design of any page on the Site or portion thereof, without Flounder Pounder’s express written consent; or (ii) use any metadata utilizing any Flounder Pounder IP or other Flounder Pounder branding, uniform resource locators (URLs) or product names without Flounder Pounder’s express written consent. You acknowledge that the use of Flounder Pounder IP on the Site or Flounder Pounder Social Media is not a license, express or implied, for you or any third party to in any way use Flounder Pounder IP. The use of Flounder Pounder IP, except as provided in these Terms, is prohibited, and you are not permitted to copy, reproduce, republish or disseminate any Flounder Pounder IP without Flounder Pounder’s prior written approval. No licenses or rights are granted to you by implication or otherwise under any intellectual property or proprietary rights owned or controlled by Flounder Pounder, except for the licenses and rights expressly granted in these Terms. Flounder Pounder reserves all rights in and to the Flounder Pounder IP, the Site and the Site’s content, functionality and services not expressly granted in these Terms.
6. Copyright Infringement. Flounder Pounder respects copyright and related laws and expects users of the Site to likewise respect such laws. Flounder Pounder may terminate the rights of users of the Site that infringe or are believed to have infringed the rights of copyright holders.
7. Products and Orders. The inclusion, listing, display and/or advertisement of any products or services on the Site do not warrant that these products or services will be available at any particular time. Such products or services may be unavailable, may have different characteristics or attributes than those set forth on the Site, or may have a different selling price than that listed on the Site. The color of products shown on the Site is dependent in part on your computer system, and Flounder Pounder does not guarantee the accurate display of product colors. Flounder Pounder endeavors to describe its products and services on the Site as accurately as possible. However, nothing contained in these Terms constitutes a representation or warranty with respect to any content, services or products and Flounder Pounder does not guarantee the accuracy, completeness or utility of any content or product or services descriptions. Flounder Pounder may make changes to product pricing, product availability or other product or service information without notice and in its sole discretion, and Flounder Pounder reserves the right, in its sole discretion and without notice, to limit the quantity of a particular product or service that may be ordered, to reject any order, to cancel any order even if already submitted, and/or to require additional information or verifications prior to acceptance or shipment. Regarding the shipment of products, title and risk of loss for the products you purchase via the Site transfers to you upon Flounder Pounder’s tender of the products to the applicable carrier and you are responsible for filing any claims related to lost or damaged products with such carrier. It is your responsibility to comply with all applicable laws and regulations regarding the receipt, possession, use and sale of products or services purchased via the Site and by placing an order for products or services via the Site you represent that the products or services you purchase will only be used lawfully. Flounder Pounder does not allow children to purchase products or services from the Site and only sells products or services via the Site to individuals age 18 or older. All orders for products or services made via the Site are subject to acceptance by Flounder Pounder. The products and services available on the Site are for personal use only and you are not permitted to sell or resell the products or services you purchase or otherwise receive from Flounder Pounder.
8. User-Submitted Content and Feedback. By submitting, posting, uploading or otherwise transmitting or making available on or to the Site or Flounder Pounder Social Media: (i) any photograph, image, graphic, visual material, link, text, music, audio, video, information, code, comment or other content or material (collectively, “Content”); or (ii) any feedback, ideas, reviews or suggestions for improvement regarding the Site or Flounder Pounder’s products or services (collectively, “Feedback”), you hereby agree to, acknowledge and understand as follows and hereby grant the following rights and permissions to Flounder Pounder and Flounder Pounder’s parent company, affiliates, subsidiaries, licensees, successors and/or assigns, and to each of Flounder Pounder’s and such entities’ managers, officers, employees, agents and representatives, and those acting with their authority and permission (collectively, “Affiliates”) with respect to any of your Content or Feedback, regardless of the form or method you choose to submit any such Content or Feedback:
a. Submission of Content and Feedback is Voluntary. Your submission, posting, uploading and/or other transmittal of Content or Feedback to the Site or any “Flounder Pounder Social Media” is entirely voluntary;
b. Use of Content. Unless otherwise agreed separately in writing, Flounder Pounder does not claim any ownership rights in your Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your Content; provided, however, that by submitting, posting, uploading or otherwise transmitting or making available any Content through the Site or Flounder Pounder Social Media, you hereby grant to Flounder Pounder a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license (with the right to sublicense) to use, copy, modify, adapt, distribute, reference, store, reproduce, cache, license, sell, transfer, publicly display or perform, prepare derivative works based upon, transmit, stream, broadcast, combine with other materials and/or otherwise exploit such Content on and through the Site, Flounder Pounder Social Media or any other distribution channels, including but not limited to any third-party distribution channels selected by, but not affiliated with, Flounder Pounder, which may include viral distribution of your Content, in any form, medium or technology now known or later invented or developed, in whole or in part, for any purposes, including for both commercial and non-commercial purposes. You also hereby grant each user of the Site and/or Flounder Pounder Social Media a non-exclusive license to access your Content through the Site and/or Flounder Pounder Social Media, and to use, reproduce, distribute and display such Content as permitted through the functionality of the Site and/or Flounder Pounder Social Media. You hereby waive any and all claims that you may have now or may hereafter have in any jurisdiction to so-called “moral rights” or “droit moral” with respect to your Content, and to the results and proceeds thereof as well as any requirement that your name be used in connection with your Content.
c. No Compensation for Content or Feedback. You agree that neither Flounder Pounder nor any Flounder Pounder Social Media nor any third party distribution channels have any obligation to provide any compensation to you for your Content, your Feedback or the licenses granted herein, and that your appearance in any Content confers upon you no rights to receive compensation of any kind. Further, you agree to pay all royalties, fees and other funds owing to any person by reason of any use of your Content;
d. Representations & Warranties. You acknowledge and agree that you are solely responsible for all of your Content and Feedback and you warrant and represent that (i) you are the sole owner and/or author of your Content and Feedback and have the right to disclose the Content and Feedback and grant to Flounder Pounder and its Affiliates the rights to your Content and Feedback granted hereunder; (ii) your Content and Feedback are original and neither infringes, misappropriates or otherwise violates the copyright, trademark, intellectual property, proprietary, publicity, privacy or other rights of any third party or violates any applicable law or regulation; (iii) neither your Content nor Feedback encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability, and the posting or publishing of such Content or Feedback will not result in a breach of any contract between you and a third party; (iv) neither your Content nor Feedback is fraudulent, false, misleading or deceptive, nor is it defamatory, vulgar or offensive; (v) neither your Content nor Feedback promotes racism or unlawful discrimination or harassment, is violent or threatening, or promotes unlawful or harmful activities or substances. With respect to any Content or Feedback containing the intellectual property, image, name, likeness, appearance, or other identifying characteristics of any entities or individuals other than you, you have obtained any and all permissions, consents and approvals from such entities or individuals necessary to grant the rights granted to Flounder Pounder & Affiliates hereunder;
e. Release of Flounder Pounder and Affiliates. You hereby release, discharge, and agree to hold harmless Flounder Pounder and its Affiliates from: (i) any liability by virtue of any modification, blurring, distortion, alteration, or use in composite form, whether intentional or otherwise, that may occur or be produced in the receipt or transfer of any of your Content or Feedback or in any subsequent processing of it, as well as any use or publication of it, including without limitation any claims for libel or violation of any right of publicity or privacy; and (ii) any claim or liability for any alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, or rights of attribution in connection with any of your Content or Feedback. You understand that your release extends to claims that you do not know or do not expect to exist at the time of agreeing to this release, and you hereby waive the protections of California Civil Code Section 1542, which states as follows: 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.
f. No Obligation to Evaluate or Use Content or Feedback. You acknowledge and agree that Flounder Pounder has no obligation to actually use any Content or Feedback. Moreover, Flounder Pounder is not responsible for examining or evaluating Content or Feedback, nor does Flounder Pounder assume any responsibility or liability for any Content or Feedback, including without limitation, for any errors or omissions in any Content or Feedback or for any loss or damage of any kind incurred by you as a result of the use of any Content or Feedback submitted, posted, uploaded or otherwise transmitted or made available via the Site and/or Flounder Pounder Social Media. Flounder Pounder does not guarantee the accuracy, integrity or quality of any Content. You understand that by using the Site, you may be exposed to Content or Feedback that is offensive, indecent or objectionable to you. In addition, you acknowledge that Flounder Pounder neither endorses nor is responsible for the accuracy or reliability of any third party comment, opinion or statement on the Site or Flounder Pounder Social Media and Flounder Pounder has no obligation to modify or remove any such comments, opinions or statements.
g. No Confidentiality. You acknowledge that Flounder Pounder does not agree to maintain the confidentiality of any Content or Feedback, even if the documents or information comprising the Content or Feedback is marked as confidential or you otherwise indicate the confidential nature of the Content or Feedback, except to the extent there is a separate, written confidentiality agreement executed by Flounder Pounder encompassing the Content or Feedback.
h. Removal of Content.You acknowledge that Flounder Pounder may, at any time and without prior notice, remove or restrict access to any Content, including but not limited to any Content that Flounder Pounder considers, in its sole discretion, to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Site, Flounder Pounder Social Media or the Flounder Pounder brand. If you wish to remove or delete your Content on the Site, please contact us by email at email@example.com and include the following information in your deletion request: first name, last name, user name/screen name (if applicable), email address associated with the Site, your reason for deleting the posting, and date(s) of posting(s) you wish to delete (if you have it).
Flounder Pounder may not be able to process your deletion request if you are unable to provide such information. You should allow up to at least 10 business days to process your removal request.
i. Feedback. You acknowledge and recognize that Flounder Pounder has a variety of established product lines, is continually developing new products and/or services, and may currently or in the future be internally developing ideas or information or receiving ideas or information from others that are likely to be similar to your Feedback. Nothing in these Terms will be construed as a representation or inference that Flounder Pounder will not independently develop or authorize the development of products, services, ideas or concepts that may compete with or be similar to your Feedback. Flounder Pounder assumes no fiduciary obligation of any kind with respect to any Feedback that relates to the Site, Flounder Pounder Social Media or Flounder Pounder’s products or services. You also acknowledge and agree that Flounder Pounder’s willingness to review any Feedback is not an admission by Flounder Pounder of the novelty, priority, or originality of such Feedback and does not restrict or impair Flounder Pounder’s right to contest or oppose existing or future intellectual property, proprietary or other rights, applications or registrations claiming the ideas. You agree that Flounder Pounder assumes no liability in or for your Feedback. You acknowledge and agree that all Feedback will be the sole and exclusive property of Flounder Pounder and you hereby irrevocably assign to Flounder Pounder all of your right, title, and interest in and to all Feedback, including any intellectual property, proprietary or other rights therein.
9. Links. The Site may contain hyperlinks (“links”) to third party websites and online resources. These links are provided for your convenience and for informational purposes only and do not imply Flounder Pounder’s endorsement of such websites or resources or the content, products, or services available from such websites or resources. These third party websites and resources are neither controlled by nor monitored by Flounder Pounder, and Flounder Pounder is not responsible or liable for either the availability or accuracy of such websites or resources or the content, products, or services on or available from such websites or resources. Flounder Pounder makes no warranties or representations regarding the information contained on these websites or resources and any use or connection to these websites or resources is made at your own risk. You acknowledge that by accessing such third party links you may be exposed to content that is offensive, harmful, inaccurate or otherwise inappropriate. All links to the Site not provided by Flounder Pounder must be approved in advance and in writing by Flounder Pounder.
10. User Accounts. To access or use certain areas or functions of the Site you may be required to register and create an account (“Account”). During this process you will be required to provide certain information and establish log-in credentials. You agree to provide accurate and complete information during this process and at all other times when you use the Site, and you also agree to update such information. Flounder Pounder reserves the right, in its sole discretion, to refuse to establish or maintain Accounts for, or provide products or services to, any individual or entity. Flounder Pounder also reserves the right to suspend or terminate your Account, in its sole discretion and without prior notice to you, if any information you provide is inaccurate or incomplete, if you otherwise breach any of these Terms or any Additional Terms. Flounder Pounder may also refer any information on illegal activities, including your identity, to law enforcement authorities. Flounder Pounder cannot guarantee the security of your Account or the personal or other information you provide in connection therewith or otherwise, nor can Flounder Pounder guarantee that its security measures will prevent third party intrusions or “hackers” from accessing your personal or other information. You are responsible for safeguarding your Account password, you agree not to disclose your password or other credentials to any third party, and you agree to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions, and to accept any and all risks of unauthorized access to your Account or your personal or other information. You will immediately notify Flounder Pounder of any unauthorized use of your Account. You may cancel your Account at any time by contacting Flounder Pounder at firstname.lastname@example.org.
12. No Liability for FLOUNDER POUNDER. BY ACCESSING AND/OR USING THE SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE USING THE SITE SOLELY AT YOUR OWN RISK AND THAT IN NO CIRCUMSTANCES WILL FLOUNDER POUNDER OR ITS AFFILIATES BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, RELIANCE, SPECIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF COVER DAMAGES, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR INTANGIBLE LOSSES OF ANY KIND, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FLOUNDER POUNDER OR ITS AFFILIATES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE), COSTS OR EXPENSES OF ANY KIND (INCLUDING ATTORNEYS’ FEES), THAT MAY ARISE DIRECTLY OR INDIRECTLY IN CONNECTION WITH YOUR ACCESS OR USE OF THE SITE, FLOUNDER POUNDER SOCIAL MEDIA OR FLOUNDER POUNDER PRODUCTS OR SERVICES, REGARDLESS OF WHETHER ANY SUCH LOSSES OR DAMAGES STEM FROM CONTRACT, TORT AND/OR EQUITABLE CLAIMS AND REGARDLESS OF WHETHER ANY SUCH LOSSES OR DAMAGES ARE CAUSED OR CONTRIBUTED TO BY THE ACTIONS (NEGLIGENT OR OTHERWISE) OF FLOUNDER POUNDER OR ITS AFFILIATES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER FLOUNDER POUNDER NOR ITS AFFILIATES WILL UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CLAIMS, LOSSES OR DAMAGES RESULTING FROM OR RELATING TO: (1) ANY LOSS OR DAMAGE TO DATA, SOFTWARE OR HARDWARE ASSOCIATED WITH YOUR USE OF THE SITE; (2) ANY DELAY OR INABILITY TO ACCESS OR USE THE SITE OR ANY LINKS OR CONNECTIONS THERETO; (3) ANY TRANSMISSION DEFECTS, VIRUSES OR SIMILAR EVENTS; OR (4) THE UPLOADING OR DOWNLOADING OF ANY MATERIAL OR INFORMATION TO OR FROM THE SITE.
IF YOU HAVE A DISPUTE WITH FLOUNDER POUNDER OR ARE DISSATISFIED WITH THE SITE, TERMINATION OF YOUR USE OF THE SITE IS YOUR SOLE REMEDY AND, IN SUCH INSTANCE, NEITHER FLOUNDER POUNDER NOR ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OR RESPONSIBILITY TO YOU.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR ELSEWHERE, IN NO EVENT WILL FLOUNDER POUNDER AND/OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE EXCEED THE GREATER OF: (1) THE PURCHASE PRICE FOR THE PRODUCT AT ISSUE, IF APPLICABLE; OR (2) FIFTY DOLLARS ($50). MOREOVER, UNDER NO CIRCUMSTANCES WILL FLOUNDER POUNDER & AFFILIATES BE LIABLE FOR ANY DELAY OR PERFORMANCE FAILURE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OR FORCES OF NATURE OR OTHER CAUSES BEYOND THEIR REASONABLE CONTROL.
THE FOREGOING LIMITATIONS OF LIABILITY WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13. No Warranties. THE SITE AND THE CONTENT THEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. FLOUNDER POUNDER AND ITS AFFILIATES DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLOUNDER POUNDER AND ITS AFFILIATES ALSO DO NOT MAKE AND EXPRESSLY DISCLAIM ANY WARRANTIES: (1) THAT THE SITE OR THE INFORMATION OR CONTENT CONTAINED HEREIN WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; (2) THAT THE SITE IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MATERIAL; (3) AS TO THE SITE’S ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS; (4) THAT FLOUNDER POUNDER WILL CONTINUE TO OFFER OR MAKE AVAILABLE THE SITE; OR (5) REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE.
CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES AND MAY NOT PERMIT CERTAIN LIMITATIONS ON LIABILITY, AND IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND/OR LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER YOU AGREE THAT FLOUNDER POUNDER AND ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU WILL BE LIMITED TO FULLEST EXTENT PERMITTED BY LAW.
FLOUNDER POUNDER RESERVES THE RIGHT TO CHANGE OR UPDATE THE SITE WITHOUT NOTICE TO YOU AND NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLOUNDER POUNDER OR ITS AFFILIATES OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
14. Indemnity. By accessing and/or using the Site, you agree to defend, indemnify and hold harmless Flounder Pounder and its Affiliates from and against any and all losses, claims, damages, costs and expenses (including attorneys’ fees) that Flounder Pounder and/or Affiliates may become obligated to pay as a result of your access and/or use of the Site (including but not limited to any of your Content or Feedback), your negligence, your breach of or failure to comply with these Terms or any Additional Terms, your violation of the rights of any person or entity and/or your use of any products or services purchased or obtained via the Site. Flounder Pounder and its Affiliates reserves the right to assume or participate, at your sole expense, in the investigation, settlement and/or defense of any such claim and you agree to cooperate with Flounder Pounder’s defense of any such claim.
15. Additional User Restrictions. In addition to any other restrictions or prohibitions contained herein, you agree not to do any of the following:
store in any information retrieval system, transfer, publish, distribute, display to others, broadcast, sell, or sublicense the Site, its contents or any portion thereof;
remove, interfere with or disable any functionality in the Site;
use any meta tags, hidden text, robots, spiders, crawlers, scrapers or other automated mechanisms to access the Site or any content therein for any purpose without Flounder Pounder’s express written permission;
decompile, disassemble, create or attempt to create, by reverse engineering or otherwise, the source code or any other code accessible as part of the Site, or modify, reverse engineer or create any derivative works based upon the Site or any content therein;
use, copy or otherwise access any restricted or private area of the Site or any data, content or materials contained in any such area of the Site;
circumvent, breach, or attempt to circumvent or breach any security or authentication measures designed to control access to the Site or in any way obtain or attempt to obtain unauthorized access to or use of any elements or portion of the Site;
log into or otherwise access an Account that you are not authorized to access;
attempt to probe, scan or test the vulnerability of a system or network related to or connected with the Site;
use the Site to infringe the intellectual property or proprietary rights of others;
use the Site or make any attempt to penetrate, modify or manipulate the Site or any of Flounder Pounder’s systems, hardware or software to invade the privacy of, obtain the identity of, or obtain any personal information about any third party;
attempt to access, interfere with service to, or disrupt the Site or any Site user, host or network, including without limitation, by submitting any harmful code, trojan horse, worm or virus to the Site, any denial of service attack, overloading, “spimming”, “spamming”, or attempted crashing of the Site or the systems, networks, software or hardware used in providing the Site;
“spoof” or otherwise impersonate any individual or entity, or forge, delete or alter any part of TCP/IP packet header information in any e-mail or other posting;
collect or store any personally identifiable information from the Site from other users of the Site without their express permission;
impersonate or misrepresent your affiliation with any person or entity;
facilitate or coordinate commercial activities and/or sales via or involving the Site without Flounder Pounder’s prior consent, including but not limited to sweepstakes or other contests, advertising, barter, or pyramid schemes;
posting, submitting or otherwise using a photograph of any individual without their consent or, in the case of individuals under age 18, parental consent;
violate any applicable law, regulation, requirement or standard in your access or use of the Site; or
encourage or enable any other individual or entity to do any of the foregoing.
16. Mobile Service Providers. To facilitate your connection to mobile-enhanced versions or portions of the Site, you must possess a mobile device that is compatible with the Site and/or such versions or portions thereof. Flounder Pounder does not warrant that the Site or such mobile-enhanced versions or portions of the Site will be compatible with your mobile device. In addition, you acknowledge that you may be obligated to pay certain fees or charges for the use of your mobile device to access or use the Site or for your access or use of such mobile-enhanced versions or portions of the Site, including but not limited to any messaging, data or other charges by your mobile service provider. You are hereby advised to check with your mobile service provider to determine the nature and amount of any such fees and charges. Further, your mobile service provider may restrict your ability to download, install or otherwise use the Site or the mobile-enhanced versions or portions of the Site, and neither the Site nor such versions or portions of the Site may be compatible with all mobile devices or service providers.
17. Modifications. Flounder Pounder may, in its sole discretion, modify or change these Terms at any time by posting the changed or modified Terms or any Additional Terms on the Site. Your continued use of the Site thereafter constitutes your agreement to all such changed Terms or any Additional Terms. Flounder Pounder may, in its sole discretion and with or without prior notice, terminate any of the rights granted by these Terms. You shall comply immediately with any termination or other notice, including, as applicable, by ceasing all use of the Site.
18. Governing Law/Venue. These Terms will be governed by and construed in accordance with the laws of the State of Georgia and controlling United States federal law, notwithstanding any conflict of laws provisions or doctrines of such state or any other jurisdiction to the contrary. Subject to the binding arbitration provisions contained in Section 19, below, you agree to submit to the jurisdiction of the courts situated in Duval County, Florida with respect to any claim, cause of action or dispute related to or involving the Site or your access or use thereof. The United Nations Convention on Contracts for the International Sale of Goods will have no applicability to these Terms and Flounder Pounder hereby disclaims the applicability to these Terms of such convention or of any state law implementation of the Uniform Computer Information Transactions Act, including any available remedies or laws related thereto.
19. Dispute Resolution, Arbitration, Class Action Waiver. Any dispute relating in any way to your use of the Site shall be submitted to confidential arbitration in Duval County, Florida and you hereby submit to the jurisdiction and proceedings thereof, except that, to the extent you have in any manner violated or threatened to violate Flounder Pounder’s intellectual property or proprietary rights or the intellectual property or proprietary rights of its Affiliates, or Flounder Pounder otherwise has a cause of action in equity, Flounder Pounder may seek injunctive or other appropriate relief in any court of competent jurisdiction and you consent to jurisdiction and venue in any such court for such purposes. Arbitration under these Terms will be administered by the American Arbitration Association in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect, except as otherwise modified by this Section. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. You agree that you will not file or participate in any form of class action against Flounder Pounder or its Affiliates. You agree that you must assert any claims against Flounder Pounder or any of its Affiliates within one (1) year from the date of the applicable purchase or, if no purchase was made, from the date the claim first accrued.
20. United States Export Controls. Any software made available to you via the Site is subject to United States export controls and may not be downloaded from the Site or otherwise exported or re-exported in violation of United States export laws. Downloading or using any such software is at your sole risk.
21. Users Located Outside of United States. Flounder Pounder’s operations are based in the United States and the Site is operated within the United States. You acknowledge that any Content, Feedback or other information you submit or provide to Flounder Pounder or that Flounder Pounder obtains through your use of the Site or Flounder Pounder Social Media may be processed and transferred to the United States and subject to United States laws and regulations. The United States privacy and data protection laws and regulations may not be the same or similar to the privacy or data protection laws and regulations in your resident jurisdiction. By accessing or using the Site or Flounder Pounder Social Media or by providing Content, Feedback or any other information to Flounder Pounder, you consent to Flounder Pounder’s collection, transfer, storage and processing of your information to and within the United States.
22. Miscellaneous. These Terms and any Additional Terms, as applicable, constitute the complete and exclusive agreement between you and Flounder Pounder concerning your use of the Site, and supersede all prior agreements, understandings and/or communications. You acknowledge that the authorizations, releases, and agreements contained herein are irrevocable and unconditional, and you hereby agree not to assert any claim of any nature whatsoever against anyone relating to the exercise of the rights or permissions granted pursuant to these Terms, and specifically waive the right to seek injunctive or other equitable relief with respect to an breach (or alleged breach) of these Terms. Nothing contained in these Terms will be construed as creating any agency, partnership, or other form of joint enterprise between you and Flounder Pounder. Flounder Pounder’s failure to enforce any right or provision of these Terms or any Additional Terms will not constitute a waiver of future enforcement of that right or provision and the waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Flounder Pounder. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to any other remedies under these Terms or otherwise. If any provision of these Terms or any Additional Terms is found to be invalid or unenforceable by any court of competent jurisdiction, the invalidity or unenforceability of such provision will not affect the validity or enforceability of the remaining provisions of these Terms or any Additional Terms, which will remain in full force and effect. The headings in these Terms or any Additional Terms are for convenience only and should not be used in its interpretation. You may not assign or transfer these Terms or any Additional Terms or your rights or obligations hereunder, by operation of law or otherwise, without Flounder Pounder’s prior written consent. Any attempt by you to assign or transfer these Terms or any Additional Terms or your rights or obligations hereunder without such consent will be null and void. Flounder Pounder may assign or transfer these Terms and all or a portion of its rights or obligations hereunder, at its sole discretion without restriction. Subject to the foregoing, these Terms and any Additional Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. Flounder Pounder’s performance under these Terms or any Additional Terms is subject to applicable laws and regulations, and nothing in these Terms or any Additional Terms is intended to limit or derogate of Flounder Pounder’s right to comply with applicable laws and regulations or requests by or requirements of governmental or other authorities related to the Site or information provided to or gathered by Flounder Pounder in connection with the use of the Site. Any notices or other communications permitted or required hereunder will be in writing and given by Flounder Pounder by posting to the Site. The provisions in these Terms regarding your Content and Feedback, the Flounder Pounder IP and Flounder Pounder’s intellectual property and proprietary rights, indemnity, disclaimers of warranty, disclaimers and limitations of liability, waiver, severability, miscellaneous legal terms, governing law and venue, and dispute resolution/arbitration will survive the termination or expiration of your agreement to these Terms for any reason.
If you have any questions regarding these Terms, please email Flounder Pounder at Info@flounderpounder.com.