These Terms of Service (the “Terms”) govern the use of F.lux Software LLC’s services (the “Services”), which includes its software, mobile app, website, and information, data, text, images, videos, audio, files, and other materials uploaded to or downloaded from, stored on, obtained via, or transmitted through the Services (collectively, the “Content”). By accessing or using the Services, you agree to be bound by these Terms. If you do not agree, do not access or use the Services.
SECTION 1 – OVERVIEW OF THE SERVICES
Through the Services, F.lux stores and displays spectral data and computes metrics about that data. The Services and related data are provided for general informational purposes only and are not intended to be used for any other purpose.
SECTION 2 – USER RESPONSIBILITIES
You are solely responsible for your use of the Services and the Content. You must use the Services and the Content in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations.
B. User Accounts
You must create a user account to access certain Services features. All information you provide as part of that process must be complete and accurate. You are responsible for the actions taken by your account and for safeguarding your username and password. F.lux encourages you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers, and symbols). F.lux is not liable for any loss or damage arising from your failure to do so. If you know of or reasonably suspect a breach of security related to your account, you must immediately notify F.lux and modify your login information. F.lux reserves the right to remove or reclaim usernames for any reason.
C. Use and Conduct Restrictions
You are allowed to use the Services as long as you follow the basic rules described in these Terms. If F.lux determines that you have violated any of the rules below or elsewhere in these Terms, F.lux has the right to terminate your use of the Services and to take other actions it deems appropriate. You agree not to: (i) copy, distribute, license, or sell the Services, any component of the Services (such as computer code), or any Content not owned by you (unless the Content is expressly licensed to you for such purpose); (ii) reverse engineer, decompile, or attempt to derive the source code for underlying software or other intellectual property used to provide the Services (except to the extent applicable law prohibits restrictions on reverse engineering); (iii) attempt to gain unauthorized access to the Services, the Content, or the computers, servers, and networks connected to the Services; (iv) probe, scan, or test the vulnerability of any system or network related to the Services or breach or circumvent F.lux’s security measures; (v) access or search, or attempt to access or search, the Services or the Content by any means (automated or otherwise) other than through currently available, published interfaces; (vi) interfere with or disrupt the Services or servers or networks connected to the Services (including by transmitting worms, viruses, spyware, malware, or disruptive code); (vii) use the Services or the Content to spam, phish, pharm, pretext, spider, crawl, or scrape; (viii) use the Services or the Content for any illegal or unauthorized purpose; (ix) use the Services or the Content, or cause the Services or the Content, to infringe upon or violate any intellectual property or proprietary rights; (x) use the Services to harass, defame, slander, or intimidate; (xi) advertise, solicit, or transmit advertisements via the Services without F.lux’s prior approval; or (xii) engage in any act that F.lux deems to be in conflict with the spirit or intent of the Services or these Terms.
SECTION 3 – PAYMENT
A. Payment Authorization.
Certain aspects of the Services require payment. All online payments for the Services are processed by Stripe, a third-party payment processor. When you authorize F.lux to charge your selected online payment method, you are expressly authorizing F.lux (and Stripe) to charge that payment method for the authorized amount and to transmit your information related to your selected payment method (e.g., your credit card number) to and from third parties who process the approved transactions. Further, you agree to be billed on a recurring basis for any subscription fees that you agree to, and F.lux (and Stripe) do not need to obtain additional authorization from you for each recurring charge. F.lux will provide you with notice 10 days before changing the price for your subscription fees. If you do not cancel your subscription during that period, you thereby accept the price change.
B. Payment Information.
SECTION 4 – USER-PROVIDED CONTENT
Users may submit Content through and onto the Services. All Content is the sole responsibility of the person or entity that originated that Content. F.lux does not take responsibility for user-provided Content.
B. Content Submission
By submitting Content, you represent that your Content and its submission: (i) does not violate any laws, contractual restrictions, or other third-party rights, including copyright, trademark, privacy, personality, or other personal or proprietary right; and (ii) does not contain viruses, adware, spyware, worms, or other malicious code. You also represent that you have all the rights, power, and authority necessary to grant the rights granted in the Terms regarding Content originating with you. You agree to accept full liability for all Content submitted by you or on your behalf.
C. License Grant & Assignment
You retain your rights in Content that you submit to the Services. But you grant F.lux a worldwide, non-exclusive, royalty-free, perpetual, irrevocable license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, and display that Content in any and all media or distribution methods (now known or later developed) solely for the following purposes: (i) to provide the Services; and (ii) to improve the Services.
F.lux requests that you do not submit ideas about how to improve the Services to it. This is to avoid potential misunderstandings or disputes that may arise if the Services appear similar to an idea submitted by you. However, if, despite this request, you submit to F.lux an idea, suggestion, recommendation, or other feedback regarding the Services (collectively, the “Feedback”), you agree that F.lux has the right to use, disclose, reproduce, license, distribute, and exploit such Feedback as it sees fit, without obligation or restriction of any kind. By providing Feedback, you grant F.lux a worldwide, perpetual, irrevocable, sublicenseable, fully-paid, and royalty-free license to use and exploit such Feedback in any manner and without compensation to you.
SECTION 5 – ALL CONTENT
A. Reliance on Content
Your use of, or reliance on, any Content, whether user-provided or not, is at your own risk. F.lux does not endorse, support, or guarantee that such Content is complete, truthful, or reliable. F.lux is not liable for any Content (including errors or omissions in the Content), nor any loss or damages resulting from the use of, or reliance on, that Content.
B. Right to Remove Content
F.lux has the right, but not the obligation, to review, edit, refuse to post, delete, disable access to, or otherwise make unavailable any Content, including user-provided Content, without notice and for any reason.
SECTION 6 – F.LUX’S RIGHTS
All right, title, and interest in and to the Services and the Content (excluding user-provided Content) are F.lux’s exclusive property. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries, as further discussed in Section 8.
SECTION 7 – YOUR LICENSE TO USE THE SERVICES
F.lux grants you a limited, personal, non-sublicenseable, royalty-free, non-assignable, and non-exclusive license to use any software, patented or proprietary protocol, and other intellectual property that F.lux provides to you as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by F.lux in the manner permitted by these Terms. You agree not to use the Services or related intellectual property for any other purpose.
SECTION 8 – INTELLECTUAL PROPERTY
The trademarks, service marks, logos, and other distinctive brand features used as part of or displayed through the Services (the “Trademarks”) are registered or unregistered trademarks of F.lux or third parties. You may not use any of these Trademarks without the prior, written approval from the trademark owner. Nothing related to the Services grants you, expressly or implicitly, any right or license to use any of these Trademarks or may be construed to mean F.lux has the authority to grant any right or license on behalf of any third-party trademark owner.
Much of the Content throughout the Services is protected by copyright laws and may be covered by other restrictions as well. Such Content is proprietary to F.lux or used consistent with the owner’s permission or applicable law or regulation. F.lux retains all rights it may hold, including copyright, in its Content. Copyrights and other proprietary rights in the Content may also subsist in individuals and entities other than, or in addition to, F.lux. F.lux expressly prohibits the copying of any such protected Content, except as expressly permitted by these Terms.
C. Reservation of Rights
All rights not expressly granted by F.lux herein are specifically reserved. Nothing on the Services or in these Terms grants, expressly or implicitly, any right or license to use any content or property of any third party, or may be construed to mean that F.lux has the authority to grant any right or license on behalf of any third party.
D. Copyright Policy
F.lux reserves the right to remove Content alleged to be infringing without prior notice, at its discretion, and without liability to you. F.lux will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to it. F.lux’s designated copyright agent for notice of alleged copyright infringement is:
F.lux Software LLC
c/o Law Offices of Stuart L. Carroll
400 Continental Blvd., Suite 600
El Segundo, California 90245
SECTION 9 – PRIVACY
SECTION 10 – ENDING THESE TERMS
These Terms apply until you or F.lux terminate this agreement. You may end this agreement with F.lux by discontinuing your use of the Services and by deactivating your account, if applicable. You do not need to specifically inform F.lux when you stop using the Services. F.lux may cease providing you with all or part of the Services and terminate this agreement at any time for any reason. This section doesn’t affect F.lux’s rights to change, limit, or stop providing the Services without prior notice. When this agreement terminates, all of the Terms terminate, except that the following sections will continue to apply: 4 (User-Provided Content), 5 (All Content), 6 (F.lux’s Rights), 8 (Intellectual Property), 9 (Privacy), 11 (Disclaimers and Limitations of Liability), and 12 (Miscellaneous).
SECTION 11 – DISCLAIMERS AND LIMITATIONS OF LIABILITY
Please read this section carefully since it limits the liability of F.lux and its parents, subsidiaries, affiliates, related companies, managers, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “F.lux Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result, the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have that may not be lawfully limited.
A. The Services is Available “As-Is”
Your use of the Services and the Content is at your own risk. You agree that the Services (including its related services and features) are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, THE F.LUX ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COPYRIGHT OWNERSHIP, AND NONINFRINGEMENT.
The F.lux Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security, or reliability of the Services or the Content, whether user-supplied or not; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or Content; (iii) the deletion of, or the failure to store or to transmit, Content and other communications maintained by the F.lux Entities; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, prompt, secure, or error-free basis. No advice or information, whether oral or written, obtained from the F.lux Entities or through the Services will create any warranty not expressly made herein.
The Services may contain links to third-party websites and resources. The F.lux Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the F.lux Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
C. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE F.LUX ENTITIES ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (I) THE SERVICES; (II) THE CONTENT; (III) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (IV) ANY ERRORS OR OMISSIONS IN THE SERVICES OR THE CONTENT; (V) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY THROUGH THE SERVICES; OR (VI) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF ANY CONTENT PROVIDED BY YOU.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE F.LUX ENTITIES EXCEED THE GREATER OF $1,000 OR THE AMOUNT YOU PAID F.LUX IF ANY.
THE LIMITATIONS OF THIS SUBSECTION APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE F.LUX ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES, OR INJURIES THAT ARISE OUT OF F.LUX’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEBSITE, SERVICE, PROPERTY, PRODUCT, OR OTHER CONTENT OWNED OR CONTROLLED BY THE F.LUX ENTITIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION, OR EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE F.LUX ENTITIES.
BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND EXPRESSLY WAIVE THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA (AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY), WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You hereby indemnify the F.lux Entities from any demand, damages, liability, expenses, and losses, including reasonable attorneys’ fees, relating to any third-party claim, suit, action, or proceeding related to or arising out of (i) your use or misuse of the Services, the Content, or any information or materials that you obtain from the foregoing; (ii) any Content provided or submitted by you; (iii) any breach by you of these Terms; and (iv) any misrepresentation made by you in connection with this agreement. F.lux reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.
SECTION 12 – MISCELLANEOUS
A. Evolving Services
The Services are always evolving and may change from time to time without notice. F.lux may stop (permanently or temporarily) providing the Services (or any Services feature) to you or to users generally and may not be able to provide you with notice. Further, F.lux may modify the Services at its discretion. New Services features will also be subject to these Terms.
B. Waiver and Severability
F.lux’s failure to enforce any right or provision in these Terms is not a waiver of that right or provision. Any such waiver must be in writing and signed by an authorized F.lux representative. In the event that any provision of these Terms (in whole or in part) is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary and the remaining provisions of these Terms will remain in effect.
C. Changes to Terms of Services
F.lux may revise these Terms from time to time. The most current version will always be located here. If the revision, in F.lux’s discretion, is material F.lux will notify you via email to the email address associated with your account or by posting notice to the website. In consideration for using the Services, you agree to check back here from time to time to determine if the Terms have been revised. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
D. Controlling Law and Arbitration
The Terms and any related actions are governed by California law, without regard to or application of California’s conflict of law provisions or those of any other jurisdiction, including your state or country of residence. YOU AGREE THAT ANY CAUSE OF ACTION, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES OR THE CONTENT BETWEEN F.LUX AND YOURSELF OR AS TO THE CONSTRUCTION, INTERPRETATION, AND EFFECT OF THIS AGREEMENT MUST BE SUBMITTED TO ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION, IN ACCORDANCE WITH ITS APPLICABLE RULES, IN LOS ANGELES, CALIFORNIA. AN AWARD OF ARBITRATION MAY BE CONFIRMED IN A COURT OF COMPETENT JURISDICTION. You agree that you and F.lux are each waiving the right to a trial by jury and to participate in a class action or class arbitration. The following is a list of exceptions to the foregoing dispute resolution requirements:
(i) Either you or F.lux may assert claims, if they qualify, in small claims court in Los Angeles, California without first engaging in arbitration.
(ii) F.lux may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Services without first engaging in arbitration.
(iii) F.lux may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any intellectual property infringement without first engaging in arbitration.
(iv) If the agreement to arbitrate is found to be unenforceable, then you agree that any resulting judicial proceedings will be brought in the federal or state courts of Los Angeles, California, and by your use of the Services you expressly consent to venue and personal jurisdiction of those courts.
E. Territorial Restrictions
The Services is not intended to be distributed or used by any person or entity in any jurisdiction or country where the distribution or use would be illegal. F.lux reserves the right to limit the Services’s availability to any person, geographic area, or jurisdiction, at its discretion.
Software and Content related to the Services may be subject to United States export controls. No software or Content from the Services may be downloaded or exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software or Content related to the Services, you represent that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
F. Entire Agreement
The Terms here are the entire and exclusive agreement between F.lux and you regarding the Services and Content (excluding any separate agreement with F.lux that is in addition to these Terms), and these Terms supersede and replace any prior agreements between F.lux and you regarding the Services and Content.
G. Binding Document
You may use the Services only if you can form a binding contract with F.lux. You must be at least 13 years old to use the Services. If you are over 13 and under 18, you may use the Services only if your parent or legal guardian has reviewed these Terms and agreed to them on your behalf.
H. Company Representatives
If you are accessing or using the Services on behalf of a company, you represent that you have authority to bind that company to this agreement, and in such case, “you” and “your” refer to that company throughout this agreement.
The headings in this agreement are inserted for reference only and do not limit the scope, extent, or intent of the agreement or its provisions. As used in this agreement, the words “include” and “including,” and variations, are considered to be followed by the words “without limitation.”
J. Contact Information
The Services are operated and provided by:
F.lux Software LLC
Effective: May 9 2018.