TERMS OF SERVICE

(Effective Date: March 2011)

FluxFlex, Inc. (“Company”, “We” or “Us”) maintains these Terms of Service (“TOS”) that describes the terms and conditions applicable to the use of the FluxFlex service (collectively, the “Service”) made available through www.fluxflex.com (the “Website”) and other authorized third party sites. Your use of the Website and Service is subject at all times to these TOS and the FluxFlex Privacy Policy (“Privacy Policy”). Any inconsistencies between the TOS or the Privacy Policy shall be resolved by the Company in its sole and absolute discretion.

EACH TIME YOU USE OR ACCESS THE WEBSITE OR SERVICE, YOU AGREE TO BE BOUND BY THESE TOS AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) THESE TOS, DO NOT USE OR ACCESS THE WEBSITE OR SERVICE. YOUR CONTINUED ACCESS OF THE WEBSITE OR USE OF THE SERVICE SHALL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO BE LEGALLY BOUND BY THESE TOS, AS THEY MAY BE AMENDED FROM TIME TO TIME. ANY REFERENCES HEREIN TO “YOU” AND “YOUR” REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.

In some instances, both these TOS and separate terms of service, rules, policies or guidelines set forth additional conditions that may apply to a Service or product offered by the Company (“Additional Terms”). To the extent there is a conflict between the TOS and any Additional Terms, the Additional Terms will control unless the Company determines otherwise, in its sole and absolute discretion.

1. LICENSE

• Grant. Subject to the terms and conditions of these TOS, the Privacy Policy and any Additional Terms (each of which are hereby incorporated by this reference), the Company hereby grants to you a limited, non-exclusive, non-transferable and revocable right and license to use and display the Website and Service, for the sole purpose of using the Service for personal and non-commercial purposes. The Company may terminate this license without notice in the event you fail to comply with these TOS, any Additional Terms or the Privacy Policy. Upon termination of the license, you must immediately cease accessing or using the Website and Service.
• Limitations. The license granted to you is subject to the following limitations. You shall not or permit any other person to:
  • in whole or in part modify or create any derivative work of the Service, including Company Materials (defined below);
  • modify, alter or remove any copyright, patent, confidentiality, trademark and other notices, labels or legends in any Company Materials;
  • sell, grant a security interest in or transfer reproductions of any Company Materials to other parties in any way not expressly authorized herein;
  • assign, rent, lease, distribute or license any Company Materials to others;
  • exploit the Service, including any Company Materials, or any of its parts for any commercial purpose; or
  • create or maintain, under any circumstance, any unauthorized connections to the Service. All connections to the Service may only be made through methods and means expressly approved by the Company. Under no circumstances may you connect, or create tools that allow you or others to connect, to the proprietary interface or interfaces other than those expressly provided by the Company for public use.

Your failure to comply with the restrictions and limitations listed above and elsewhere in these TOS shall result in immediate (without notice), automatic termination of the license granted hereunder, your Account, and may subject you to civil and/or criminal liability.

2. IP OWNERSHIP

• Website and Service. The Company, its licensors and/or certain third parties (as applicable) retain exclusive right, title and interest (including all intellectual property rights) in and to all materials that are part of the Website and Service (including past, present and future versions), including, without limitation: graphics; layout; text; images; audio and/or video; designs; advertising copy; logos; domain names; trade names and marks; and service marks; any and all copyrightable material; the “look and feel” of the Website and Service; the compilation, assembly and arrangement of the materials of the Website; and all other materials or content (excluding Member Content) made available on the Website (collectively, the “Company Materials”) and such Company Materials are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties.
• Trademark Notice. FluxFlex™ and the FluxFlex logo(s) are trademarks and service marks of the Company and/or its licensor(s). All rights are reserved. All other trademarks and service marks appearing on the Website or as part of the Service are the property of their respective owners. All rights are reserved. Use of any of our trademarks, service marks or names as “metatags” for any purpose other than as expressly authorized in these TOS is strictly prohibited.
• No Additional Rights. Only those licenses expressly set forth in these TOS are granted. No other licenses are granted under these TOS, whether by implication, estoppel, course of conduct, or otherwise. Nothing in these TOS is intended to transfer any of the right, title and interest (including all intellectual property rights) from the Company and/or its licensors to you or any third party. If you are ever inadvertently or erroneous held or deemed to be the owner of any such rights, you agree to assign and hereby irrevocably assign to the Company or its licensors, as the case may be, all such rights as of the effective date of these TOS, and agree to execute all documents to implement and confirm the letter and intent of the foregoing.

3. ACCOUNT REGISTRATION

By completing the Website registration process, you may establish a membership account (“Account”) and become a registered member (“Member”), and access the Service. To create an Account, you must provide such information as may be requested during the registration process. You must provide truthful and accurate information during the Account registration process.

Notwithstanding anything to the contrary, Company may approve or reject your Account registration application for any reason or no reason in its sole and absolute discretion. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process. Upon approval of your registration, you will be granted access to the Service.

You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal your Account password to other Members or permit others to access your Account. The Company will not ask you to reveal your password or ever initiate any contact with you by asking for your personal information. If you forget your password, we will send it to you after we confirm your identity.

Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall be owned solely and exclusively by the Company. No rights conferred to you in connection with the Service (including any Company Materials) may be transferred or assigned by you (by operation of law or otherwise including at the time of cancellation of your Account) to any third party without the prior written consent of the Company.

• Service Fees and Charges. You may create an Account and access the Service without paying any registration, subscription and/or use fees. However, in the future the Company may, in its sole and absolute discretion, charge fees to access the Service.

  The Company, in its sole and absolute discretion, may, from time to time, modify, amend, or supplement the Service fee terms and billing methods, and post those changes on the TOS page or elsewhere on the Website. Such modifications, amendments or supplements shall be effective immediately upon posting on the Website. If any change is unacceptable to you, you may cancel your Account at any time, but the Company will not refund any Service fees that may have accrued to your Account before such cancellation, and we will not prorate the refund of any Service fees.

  In addition to the foregoing, you hereby acknowledge and agree that you shall solely be responsible for and bear all telecommunication expenses, including, telephone charges, Internet connection charges and electricity charges, arising out of your use of the Services.

• Billing Methods. Subject to technical problems and revisions to payment policies which may be instituted by the Company at any time without notice, you may pay for any applicable Service fees and other charges by major credit card or such other methods expressly authorized in writing by the Company.

  When you provide credit card or other payment information to the Company, you represent to the Company that you are the authorized user of such credit card that is used to pay the fees and charges applicable to the subject Account. As the Account holder, you are responsible for all fees and charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including your family or friends. This means that, unless your Account or payment information is obtained unlawfully or fraudulently by someone other than those authorized by you to use your Account, you will be responsible for all usage and purchases on your Account.

  Any dispute arising between you and any third party payment provider (including a credit card company) shall be resolved directly between you and such third party provider. Under no circumstances shall Company be liable for any obligations incurred by you to such third party provider in connection with the use of the Service. You agree to indemnify, defend and hold harmless Company, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from such dispute.

• Termination of Account. You have the right to terminate or cancel your Account at any time. You understand and agree that unless otherwise expressly provided for in these TOS, the cancellation of your Account is your sole right and remedy with respect to any dispute, including, but not limited to, any related to, or arising out of: (i) any term of these TOS or the Company’s enforcement or application of these TOS, (ii) the Company Materials and other content available through the Service, (iii) your ability to access and/or use the Website and Service and/or (iv) where applicable, the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.

  You may cancel your Account by following the termination procedure set forth in the Service and delivering an email notice to support@fluxflex.com. The Company reserves the right to collect accrued and unpaid fees and charges and costs owed by you. The Account cancellation shall become effective upon Company’s receipt of the authorized cancellation request. If applicable, Company reserves the right to collect accrued fees and charges and costs incurred by Company before Account the cancellation becomes effective. In addition, you are responsible for any fees, charges and costs incurred to third-party vendors or content providers before your cancellation.

  If you violate any of these TOS, the Company may issue you a warning about the violation, or we may choose to immediately terminate your Account(s). You acknowledge and agree that the Company may terminate your Account(s) at any time for any reason or no reason in its sole and absolute discretion. Moreover, if the Company terminates your Account because of your breach of these TOS, any Additional Terms or the Privacy Policy, or the Company removes, deletes or loses any of your Member Content (defined below), the Company shall have no liability or responsibility to you or any third party. Moreover, in the event your Account is terminated or canceled for any reason, you will have no further access to your Account or anything within Services associated with it. Under no circumstances shall Company be responsible for storing any Account, Member Content or any other Member information following termination or cancellation of an Account.

• Refund Policy. All Service fees and/or charges incurred by a Member are non-refundable except if the Member who incurred the subject fees and/or charges can prove that the Member has been victimized by identity theft. Notwithstanding anything to the contrary, Company may reject your refund request if, in its reasonable judgment, it does not agree with your claim that an identity theft or crime has occurred. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process.

4. MEMBER CONTENT

The Company does not solicit submissions, creative materials, ideas or suggestions other than those the Company may specifically request. Any communications or materials you transmit to the Company by e-mail or otherwise including, without limitation, data, questions, feedback, comments, ideas, images, writings, music, sounds, audiovisual effects, artwork, design elements, graphics, suggestions, concepts, biographical information, notes or chat or message postings, will be treated as non-confidential and non-proprietary except as otherwise described in the Website Privacy Policy. As part of the Service, the Company may invite you to participate in blogs, message boards, contests, sweepstakes, online forums and other functionality and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to the Company and/or to or via the Website and the Service, including, without limitation, text, writings, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively, excluding Company Materials not created by you, “Member Content”). You agree that your Member Content is wholly original with you and you exclusively own the rights to your Member Content, including the right to grant all of the rights and licenses in these TOS without the Company incurring any third party obligations or liability arising out of its exercise of the rights thereto granted herein by you.

You hereby grant to the Company the unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, fully-paid and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, delete, make derivative works from, retitle, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your Member Content to which you have contributed, for any purpose whatsoever, in any and all formats; on or through any and all media, software, formula or medium now known or hereafter known; and with any technology or devices now known or hereafter developed and to advertise, market and promote same. You further agree that the Company is free to use any ideas, information, concepts, know-how or techniques contained in any Member Content you send to the Website or the Company, for any purposes whatsoever, including, without limitation, developing, producing, marketing and otherwise exploiting products and/or services using such Member Content, and without remuneration of any kind. You further perpetually and irrevocably grant the Company the unconditional right to use and exploit your name, persona and likeness included in any Member Content and in connection with any Member Content, without any obligations to you. Except as prohibited by law, you waive any rights of attribution and/or any so-called moral rights you may have in any Member Content you submit, even if such Member Content is altered or changed in a manner not agreeable to you.

The Company has no obligation to monitor or enforce your intellectual property rights to your Member Content but has the right to protect and enforce its and its licensees’ licensed rights to your Member Content, including, without limitation, by bringing and controlling actions in your name and on your behalf (at the Company’s cost and expense, to which you hereby consent and irrevocably appoint the Company as your attorney-in-fact, with the power of substitution and delegations, which appointment is coupled with an interest). You also agree and understand that the Company is not obligated to use Member Content and that you will not receive any additional consideration or compensation for your Member Content or for any exploitation thereof.

You acknowledge and agree that your communications with other users via any channel of communication on the Service are public and not private, and that you have no expectation of privacy concerning your use of the Service. You acknowledge that personal information that you communicate on the Service may be seen and used by others and result in unsolicited communications, therefore we strongly encourage you not to disclose any personal information about yourself in your public communications on the Service. You are solely responsible for these communications and their legality under all applicable laws and regulations. Company is not responsible for information that you choose to communicate to other users on the Service, or for the actions of other users. For information regarding Company’s use of information collected in connection with the Services, please refer to the Company’s Website Privacy Policy.

5. ONLINE CONDUCT

You agree that you will be personally responsible for your use of the Service and for all of your Member Content and online activity in connection with the Service, and that you will indemnify and hold harmless the Company, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from such use, Member Content and activity. Specifically, you agree to comply with all applicable laws, rules and regulations governing the disclosure and use of third party property, including, without limitation, any and all intellectual property rights. Moreover, you agree not to engage in any of the following:

• Post, transmit, promote, or distribute illegal content.
• Infringe upon the intellectual property rights of Company or any third party.
• Alter, delete or cancel another member’s Account, any member profile information or Member Content.
• Impersonate another person, indicate that you are a Company or affiliate employee or agent, or attempt to mislead members by indicating that you represent Company or any of Company’s licensors or affiliates.
• Attempt to get a Member I.D., password, or other Account information, or any other private information from a member or any other member of the Services. Company employees will NEVER ask for your password. Don't give your password, secret answers, or billing information out to anyone.
• Engage in or promote or encourage any illegal or fraudulent activity including hacking, cracking or distribution of counterfeit software, or identity theft.
• Upload files or display URLs that contain a virus or corrupted data.
• Modify, reproduce, distribute, delete or create derivative works of the Service, Website. Company Materials or any Member Content displayed therein, or any component thereof.
• Attempt (or authorize, encourage or support others’ attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service or any component thereto.
• Interfere with, hack into or decipher any transmissions to or from the servers running the Service.
• Copy, sell, assign, lease, license or grant a security interest in the Services or any part thereof (including Company Materials or Account(s)).
• Modify or remove any copyright, patent, confidentiality, and other notices, labels or legends in the Website.

If you encounter another Member who is violating any of the items described in the Online Conduct list above, please report them to support@fluxflex.com.

6. MODIFICATIONS

• Terms of Service. The Company may, from time to time, modify, amend, or supplement these TOS and post those changes on the TOS page. Such modifications or supplements shall be effective immediately upon posting on the Website. You are responsible for periodically checking the Website for changes to the TOS. If you do not agree to be bound by (or cannot comply with) the TOS as modified or supplemented, you agree that your sole remedy is to cease using the Services by canceling your Account. Your continued use of the Services constitutes your agreement to be bound by the modified TOS.
• Website and Service. The Company reserves the exclusive right and may, at any time and without notice and liability to you, modify, supplement, suspend or discontinue (collectively, “Changes”) the Website or the Service, whether temporarily or permanently, in whole or in part. Any such Change shall be effective immediately upon notice by posting on the Website, the Service or these TOS, or by any other method of notice the Company deems appropriate. Any access or use of the Website or Service after such notice of Change, constitutes acceptance by you of such Change. Temporary interruptions in the availability of the Website or Service may occur from time to time as normal events. You agree that neither the Company nor any of its affiliates, licensors, agents, or employees is liable to you or any third party for any revision, supplement, suspension, or discontinuation of the Website or Service, and termination of any license. The Website and Service may include technical inaccuracies, typographical errors or may enable you to access or download harmful or malicious code introduced onto the Internet by third parties. The Website and Service are made available internationally and may contain references to products, programs and services of the Company /or its licensors that are not available in your location. Such references do not imply that the Company or its licensors intend to make available such products, programs or services in your location.

7. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE, WEBSITE AND THE INTERNET IS AT YOUR SOLE RISK. THE SERVICE, WEBSITE, THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THE COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.

8. LIMITATIONS OF LIABILITIES

YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY OR ITS LICENSORS IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANY, ITS LICENSORS OR ITS AFFILIATES BE LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICE. MOREOVER, IN NO CASE SHALL THE COMPANY’S OR ITS LICENSORS', AFFILIATES’, EMPLOYEES', OFFICERS', OR DIRECTORS' (COLLECTIVELY, “COMPANY AFFILIATES”) LIABILITY TO YOU EXCEED THE GREATER OF: (A) US$100 OR (B) THE AMOUNT THAT YOU PAID TO THE COMPANY FOR THE SERVICE. FURTHERMORE, IN NO CASE SHALL THE COMPANY, ITS LICENSORS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, DATA, USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSS) ARISING FROM YOUR USE OF THE SERVICE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF OR MEMBERSHIP, WHETHER BASED ON WARRANTY, PRODUCT LIABILITY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE COMPANY OR ANY COMPANY AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, THE COMPANY’S AND COMPANY AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH THE SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

9. LINKS WITH OTHER SITES

For the convenience of our members, the Website may provide certain links to websites provided by third parties. The Company is not responsible for the content of any other website linked to or from the Website. If you link to another website, you leave the Website and you do so entirely at your own risk. The Company provides links from the Website to other sites solely as a convenience to you and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other website. THE COMPANY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED WEBSITE.

10. INDEMNIFICATION

You agree to defend, indemnify and hold harmless the Company and its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys' fees and costs, from third parties arising from: (a) any breach of these TOS, or any applicable rules, laws or regulations, whether or not referenced herein, (b) in connection with your use of the Website or Service, or (c) violation of any rights of any third party. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to the Company in that matter. The obligations set forth herein shall survive termination of these TOS.

11. GOVERNING LAW

This Website is operated and controlled from FluxFlex, Inc. in the State of California, U.S.A. It can be accessed from various countries of the world. The laws of the State of California, without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Website and your connection to and use of the Website and Services. By accessing or using the Website and/or Services, you submit and consent to the exclusive jurisdiction of state and federal courts located in the State of California with respect to any dispute or cause of action arising out of or in connection with these TOS and/or your use of the Website or Service.

12. INJUNCTIVE RELIEF

You acknowledge that the rights granted and obligations made hereunder to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone so that the Company shall be entitled to injunctive or other equitably relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any).

13. VOID WHERE PROHIBITED

The information provided on the Website and through the Service is not intended for distribution to or use by any person in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. The Company makes no representation or warranty that any material on the Website or Service is lawful in every jurisdiction from which such content can be accessed, or is available for use in all jurisdictions. If you access or use the Website or Service from a jurisdiction outside the State of California you are responsible for compliance with all applicable local laws. THE WEBSITE AND SERVICE(S) ARE INTENDED FOR USE BY PERSONS OVER THE AGE OF 13. BY USING THE WEBSITE OR THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE 13 OR OLDER, AND THAT YOU AGREE TO AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THESE TOS.

14. PRIVACY POLICY

The Company is committed to respecting your privacy and the confidentiality of your personal data. The Privacy Policy at www.fluxflex.com/privacy.html sets out how the Company may use your personal data, the traffic data and the content contained in your communication(s). If you object to your information being used in the way set out in the Privacy Policy, your sole remedy is to cease using the Services by canceling your Account.

15. MISCELLANEOUS

If any provision of these TOS is held to be invalid or unenforceable, that provision will be deemed to be restated to reflect as nearly as possible the original intention in accordance with applicable law, and the remainder of the TOS will remain in full force and effect. The TOS and Additional Terms (if applicable) constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Nothing in the foregoing sentence shall exclude or restrict the liability of you arising out of fraud or fraudulent misrepresentation. Any waiver of any provision of the TOS will be effective only if in writing and signed by the Company. The failure of party to assert any right under these TOS shall not be considered a waiver of that party's right will remain in full force and effect. In addition, the TOS, any Additional Terms and the Privacy Policy, including the Company’s enforcement of those policies, are not intended to confer, and do not confer, any rights or remedies upon any person. The original English version of these TOS may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail. You are not allowed to assign the TOS or any rights hereunder. The Company is allowed at its sole discretion to assign the TOS or any rights hereunder to any third party, without giving prior notice to you.

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