FLASFLASHOLR APPLICATION END USER LICENSE AGREEMENT
Effective Date: November 01, 2019
This Smartphone Application End User License Agreement (“Agreement”) applies to the smartphone application “FLASHOLR” provided by Nonika, LLC (hereinafter “FLASHOLR”).
“The Application” means the “FLASHOLR” software application that runs on a smartphone, mobile device or other electronic device.
“User” means the person authorized to use or access the Application through an approved User Account which complies with this Agreement.
“FLASHOLR” refers to Nonika, LLC, its successor, assigns, employees, agents, subsidiaries, or representatives.
“Communications” means written correspondence, emails, text messages, and any other form of written communication. This term shall also include voicemails left by User for FLASHOLR staff.
Acceptance of Terms and Conditions
By continuing to use the Application, User agrees as follows:
• User understands and intends that this Agreement is a legally binding agreement and the equivalent of a signed, written contract;
• User will use the Application in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by FLASHOLR from time to time; and
• User understands, accepts, and has received this Agreement and its terms and conditions, and acknowledges and demonstrates that User can access this Agreement.
If User do not agree with the terms and conditions in this Agreement, User must discontinue all further use of the Application.
FLASHOLR’s License to User
FLASHOLR grants User a single, non-exclusive, non-transferable and limited personal license to access and use the Application. This license is conditioned on User’s continued compliance with the terms and conditions in this Agreement. User may not rent, lease, lend, sell, transfer redistribute, or sublicense the Application and, if User sells or otherwise transfers a device on which the application is installed to a third party, User must remove the Application from such device before doing so. User may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof (except as and only to the extent that any foregoing restrictions are prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Application).
User’s License to FLASHOLR
Any Communications or material of any kind that User emails, posts, or otherwise transmits to FLASHOLR using the Application, including data, questions, comments, or suggestions will become the property of FLASHOLR. User hereby grants a license to FLASHOLR to use any ideas, concepts, know-how, or techniques contained in User’s Communications for any purpose including, but not limited to, developing and marketing products using such information.
User agrees to be bound by any affirmance, assent, or agreement User transmits to FLASHOLR using the Application, including but not limited to any consent User gives to receive communications from FLASHOLR solely through electronic transmission. User agrees that, when in the future User clicks on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Application, User’s agreement or consent will be legally binding and enforceable and the legal equivalent of User’s handwritten signature.
FLASHOLR does assess a download charge for the Application, but User’s carrier data rates may apply to User’s use of the Application.
Use of FLASHOLR Services
The following requirements apply to User’s use of the Application:
• User will not use any electronic communication feature of the Application for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful.
• User will not use the Application to upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of FLASHOLR for use of such rights.
• User will not collect or store personal data about other users of the Application.
• User will not use the Application for any commercial purpose not expressly approved by FLASHOLR in writing. User will not use the Application to upload, post, email, or otherwise transmit any advertising or promotional materials, including without limitation, “junk mail,” “surveys,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or unauthorized communication.
• User will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
• User will not use any function of the Application that requires typing, or information-input, while driving a motor vehicle, even if doing so is legally permitted in User’s location.
Security of Data Transmission and Storage
Electronic communications using the Application may not always be encrypted. User acknowledges that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between User and FLASHOLR or between User and other parties.
User understands that use of the Application may result in charges to User for the services or goods User receives (“Charges”). FLASHOLR will receive and/or enable User’s payment of the applicable Charges for services or goods obtained through User’s use of the Application. Charges may include applicable taxes. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments.
All Charges and payments will be enabled by FLASHOLR using the preferred payment method designated in User’s Account, after which User will receive a receipt by email. If User’s primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, User agrees that FLASHOLR may use a secondary payment method in User’s Account, if available. Charges paid by User are final and non-refundable, unless otherwise determined by FLASHOLR.
As between User and FLASHOLR, FLASHOLR reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Application at any time in FLASHOLR’s sole discretion. Further, User acknowledges and agrees that Charges applicable in certain geographical areas may increase substantially during times of high demand. FLASHOLR will use reasonable efforts to inform User of Charges that may apply, provided that User will be responsible for Charges incurred under User’s Account regardless of User’s awareness of such Charges or the amounts thereof. FLASHOLR may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Application, and User agrees that such promotional offers and discounts, unless also made available to User, shall have no bearing on User’s use of the Services or the Charges applied to User. User may elect to cancel User’s request for services at any time prior to the commencement of such services, in which case User may be charged a cancellation fee on a Third-Party Service Provider’s behalf. After User receives services or goods obtained through the Application, User will have the opportunity to rate User’s experience and leave additional feedback. FLASHOLR may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third-Party Service Providers or other third parties.
In certain cases, with respect to Third-Party Service Providers, Charges User incurs will be owed directly to Third Party Providers, and FLASHOLR will collect payment of those charges from User on the Third-Party Service Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by User to the Third-Party Service Provider. In such cases, User retains the right to request lower Charges from a Third-Party Service Provider for services or goods received by User from such Third Party Provider at the time User receive such services or goods, and Charges User incurs will be owed to the Third-Party Service Provider. FLASHOLR will respond to any request from a Third-Party Service Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third-Party Service Provider, if applicable, for the services or goods obtained in connection with User’s use of the Services. In all other cases, Charges User incurs will be owed and paid directly to FLASHOLR or its affiliates, where FLASHOLR is solely liable for any obligations to Third-Party Service Providers. In such cases, User retains the right to request lower Charges from FLASHOLR for services or goods received by User from a Third-Party Service Provider at the time User receives such services or goods, and FLASHOLR will respond accordingly to any request from User to modify the Charges for a particular service or good. FLASHOLR does not designate any portion of User’s payment as a tip or gratuity to a Third-Party Service Provider. Any representation by FLASHOLR to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments User makes for services or goods provided is not intended to suggest that FLASHOLR provides any additional amounts, beyond those described above, to a Third-Party Service Provider User may contract. User understands and agrees that, while User is free to provide additional payment as a gratuity to any Third-Party Service Provider who provides User with services or goods obtained through the Application, User is under no obligation to do so. Gratuities are voluntary.
Third-Party Service Providers
Through the Application, User may purchase services from Third-Party Service Providers. Any such activity, and any interactions, disputes, terms, conditions, warranties or representations associated with that activity, is solely between User and the applicable Third-Party Service Provider. FLASHOLR shall have no liability, obligation or responsibility for any transaction between User and any Third-Party Service Provider. In no event shall FLASHOLR be responsible for any content, products, services or other materials on or available from Third-Party sites or Third-Party Service Providers. Certain Third-Party Service Providers may require your agreement to additional or different terms and conditions prior to your use of or access to such services, and FLASHOLR disclaims any and all responsibility or liability arising from such agreements between User and a Third-Party Service Provider.
Furthermore, Third-Party Service Providers are considered to be independent contractors and not employees or agents of FLASHOLR. Third-Party Service Providers choose their own working hours, use their own equipment, and otherwise facilitate all services through their own independent efforts. FLASHOLR is in no way liable to withhold taxes, provide liability insurance, or maintain workers compensation coverage for any Third-Party Service Provider. More generally, FLASHOLR shall not be responsible for any duty that an employer would owe to an employee. By approving this Agreement, such Third-Party Service Providers, and other Users, acknowledge and affirm that there is no employment relationship between FLASHOLR and Third-Party Service Providers.
The Application may contain links to other sites. FLASHOLR does not control such other sites, and FLASHOLR and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those sites. The fact that FLASHOLR has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its users or its providers. There are risks in using any information, software, or products found on the Internet, and FLASHOLR cautions User to make sure User understands these risks before retrieving, using, relying upon, or purchasing anything via the Internet. User agrees that under no circumstances will User hold FLASHOLR or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites.
Trademarks and Copyrights
The Application is owned by FLASHOLR or its affiliates or agents, and is protected by United States copyright laws and international treaty provisions. All content, trademarks, service marks, trade names, logos, and icons are proprietary to FLASHOLR or its affiliates or agents. Nothing contained on or through the Application should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the Application without the written permission of FLASHOLR or such third party that may own the trademarks displayed in the Application. User’s use of the trademarks displayed in the Application, or any other content in the Application, except as provided herein, is strictly prohibited.
Images displayed through the Application are either the property of, or used with permission by, FLASHOLR or its affiliates or agents. User is prohibited from using or authorizing the use of these images unless specifically permitted under the Agreement. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.
FLASHOLR reserves the right, in its sole discretion, to terminate User’s access to the Application and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of Oklahoma and User hereby consents to the exclusive jurisdiction and venue of the district court in Oklahoma County, State of Oklahoma, for all disputes arising out of or relating to the use of the Application, except as otherwise required by the Arbitration Agreement set forth herein. Use of the Application is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
User agrees that no joint venture, partnership, employment, or agency relationship exists between User and FLASHOLR as a result of this agreement or use of the Application. FLASHOLR’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of FLASHOLR’s right to comply with governmental, court and law enforcement requests or requirements relating to User’s use of the Application or information provided to or gathered by FLASHOLR with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth herein, then the invalid or unenforceable provision(s) will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between User and FLASHOLR with respect to the Application and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and FLASHOLR with respect to the Application. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
Disclaimer of Warranties
USE OF THE APPLICATION IS ENTIRELY AT USER’S SOLE RISK. THE APPLICATION IS PROVIDED BY FLASHOLR ON AN “AS IS” BASIS. FLASHOLR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FLASHOLR MAKES NO WARRANTY THAT (i) THE APPLICATION WILL MEET USER’S REQUIREMENTS, (ii) THAT OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATION WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM FLASHOLR, OR THROUGH THE APPLICATION SHALL CREATE ANY WARRANTY REGARDING THE APPLICATION NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation of Liability
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APPLICATION MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. FLASHOLR MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE APPLICATION AT ANY TIME.
FLASHOLR MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED WITHIN OR THROUGH THE APPLICATION FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. FLASHOLR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
User agrees to indemnify and hold FLASHOLR and its affiliates, agents, employees, and licensors harmless from any claim, demand, loss, costs, or expense, including attorneys’ fees, made by any person arising out of User’s use of the Application, violation of this Agreement, violation of state or federal securities laws or regulations, or violating any other person’s rights, including but not limited to infringement of any copyright or violation of any proprietary or privacy right. Under no circumstances, including but not limited to a negligent act, will FLASHOLR or its affiliates or agents be liable for any damages of any kind that result from the use of, or the inability to use, the Application.
In the event the parties are not able to resolve any dispute arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, which arbitration shall take place in Oklahoma County, state of Oklahoma. The arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims with regard to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both User and FLASHOLR 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.
The Agreement, and all future agreements User shall enter into with FLASHOLR, unless otherwise indicated on such other agreement, shall be governed by the law of the State of Oklahoma, without regard to conflicts of law principles thereof. This is the case regardless of whether User resides or transacts business with FLASHOLR or any of its affiliates or agents within the State of Oklahoma or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, User agrees to submit to the personal and exclusive jurisdiction of the district court of Oklahoma County, state of Oklahoma. If any part of this Agreement is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
This Agreement constitutes the entire agreement between User and FLASHOLR regarding the Application, and governs use of the Application, superseding any prior agreements between User and FLASHOLR regarding the Application. If any provision of this Agreement shall be held invalid under law, such invalidity shall not affect any other provision or provisions hereof which are otherwise valid. The failure of FLASHOLR to enforce any provision in this Agreement shall not constitute a waiver of such provision or any other provision.
User is responsible for maintaining the confidentiality of User’s account and password and for restricting access to User’s electronic devices, and User agrees to accept responsibility for all activities that occur under User’s account or password. User may not assign or otherwise transfer User’s account to any other person or entity. User acknowledges that FLASHOLR is not responsible for third party access to User’s account that results from theft or misappropriation of the account. FLASHOLR reserves the right to refuse or cancel service, terminate accounts, or remove or edit content in FLASHOLR’s sole discretion.
Children Under Thirteen
FLASHOLR does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If User is under age 18, User may use the Application only with permission and supervision of a parent or guardian.
Links to Third Party Sites/Third Party Services
The Application may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of FLASHOLR and FLASHOLR is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. FLASHOLR is providing these links to User only as a convenience, and the inclusion of any link does not imply endorsement by FLASHOLR of the site or any association with its owners/operators.
Certain services made available via the Application may be delivered by third party sites and organizations. By using any product, service or functionality originating from the Application, User hereby acknowledges and consents that FLASHOLR may share such information and data with any third party with whom FLASHOLR has a contractual relationship to provide the requested product, service or functionality on behalf of FLASHOLR users and customers.
Protecting your private information is our priority. This Statement of Privacy applies to User and FLASHOLR and governs data collection and usage. By using the Application, User consents to the data practices described in this statement.
I. Collection of your Personal Information
In order to better provide User with products and services offered on our Application, FLASHOLR may collect personally identifiable information, such as User’s:
– First and Last Name
– Mailing Address
– E-mail Address
– Phone Number
If User purchase or pays for products and services, FLASHOLR collects billing and credit card information. This information is used to complete the purchase transaction.
Please keep in mind that if User directly discloses personally identifiable information or personally sensitive data through FLASHOLR’s public message boards, or through private messaging, this information may be collected and used by others.
Except as provided above, FLASHOLR does not collect any personal information about User unless User voluntarily provides it. However, User may be required to provide certain personal information to FLASHOLR when User elects to use certain products or services available through the Application. These may include: (a) registering for an account through the Application; (b) signing up for special offers from selected third parties; (c) sending FLASHOLR an email message; (d) submitting User’s credit card or other payment information when ordering and purchasing products and services through the Application. To wit, FLASHOLR will use User’s information for any purpose including, but not limited to, communicating with User in relation to services and/or products which User requests. FLASHOLR also may gather additional personal or non-personal information in the future.
II. Use of your Personal Information
FLASHOLR collects and uses User’s personal information to operate the Application and deliver/facilitate the services User requests.
FLASHOLR may also use personally identifiable information to inform User about other products or services available from FLASHOLR and its affiliates.
III. Sharing Information with Third Parties
FLASHOLR does not sell, rent or lease its customer lists to third parties.
FLASHOLR may share data with trusted partners to help perform statistical analysis, send emails or postal mail, provide customer support, or arrange/facilitate services. All such third parties are prohibited from using personal information except to provide these services to FLASHOLR, and they are required to maintain the confidentiality of User’s information.
FLASHOLR may disclose User’s personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on FLASHOLR or the site; (b) protect and defend the rights or property of FLASHOLR; and/or (c) act under exigent circumstances to protect the personal safety of users of FLASHOLR, or the public.
IV. Tracking User Behavior
FLASHOLR may keep track of the websites and pages our users access through the Application in order to determine what FLASHOLR services are the most popular. This data is used to deliver customized content and advertising within FLASHOLR to customers whose behavior indicates that they are interested in a particular subject area.
V. Automatically Collected Information
Information about hardware and software may be automatically collected by FLASHOLR. This information can include: User’s IP address, browser type, domain names, access times and referring website addresses. This information is used for the operation of the service, to maintain quality of the service, and to provide general statistics regarding use of the Application.
VI. Security of your Personal Information
FLASHOLR secures personal information from unauthorized access, use, or disclosure. FLASHOLR uses the following methods for this purpose:
– SSL Protocol
When personal information (such as a credit card number) is transmitted to other websites/applications it is protected through the use of encryption, such as the Secure Sockets Layer (SSL) protocol.
FLASHOLR strives to take appropriate security measures to protect against unauthorized access to or alteration of personal information. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. As a result, while FLASHOLR strives to protect personal information, User acknowledges that: (a) there are security and privacy limitations inherent to the Internet which are beyond FLASHOLR’s control; and (b) security, integrity, and privacy of any and all information and data exchanged between User and FLASHOLR through this Site cannot be guaranteed.
VII. Children’s Personal Information
FLASHOLR does not knowingly collect personally identifiable information from children under the age of thirteen. If User is under the age of thirteen, User may only access/use the Application with consent and supervision of a parent or legal guardian.
VIII. E-mail Communications
From time to time, FLASHOLR may contact User via email for the purpose of providing announcements, promotional offers, alerts, confirmations, surveys, and/or other general communication.
If User would like to stop receiving marketing or promotional communications via email from FLASHOLR, User may opt out of such communications by sending a request to info@FLASHOLR-apps.com.
IX. Changes to this Statement
X. Contact Information
FLASHOLR welcomes questions or comments regarding this Statement of Privacy. If User believes that FLASHOLR has not adhered to this Statement, please contact FLASHOLR at: info@FLASHOLR-apps.com.
Changes to Terms
FLASHOLR reserves the right, in its sole discretion, to change the Terms under which the Application is offered. The most current version of the Terms will supersede all previous versions. FLASHOLR encourages User to periodically review the Terms to stay informed of our updates.