FLOODIN (PTY) Ltd
F20 Airport Road Plettenberg Bay, 6600 Western Cape, South Africa
REG no. 2016/292117/07
TAX no. 9394456181
TERMS AND CONDITIONS
Effective Date: June 1st, 2017
1.1 Updates to Terms and Conditions.
Floodin reserves the right, in its sole discretion, to change or add or remove portions of the Terms and Conditions at any time (“Updates”). Floodin shall notify you of Updates by email, if you have provided an email address, and to make them available at floodin.com. You are deemed to accept any Update by continuing to use the Service or Software. Unless Floodin states otherwise, Updates are automatically effective 30 days after posting on floodin.com.
- SERVICE AND SOFTWARE TERMS
2.1 Service Subscription.
The Service includes, but is not limited to, an online photo and video sales, analytics and marketing platform, online support, onsite support (additional fees), media production, staff training. Floodin grants you a non exclusive, non sub-licensable, non assignable, revocable, limited subscription to use the Floodin service.. You acknowledge that no title or ownership interest in the Service is transferred or assigned to you and that the Terms and Conditions is not a sale of any right to the Service.
2.2 Software License.
The Software includes, but is not limited to, a photo and video display and sales application that interacts with the Service. Except as otherwise provided in the Terms and Conditions, Floodin grants you a nonexclusive, non-sublicensable, nonassignable, revocable, limited license to install and use the Software on any computer(s) and mobile device(s) involved with your business. You acknowledge that the Software is licensed to you, that no title or ownership interest in the Software is transferred or assigned to you and that the Terms and Conditions does not constitute a sale of any right to the Software.
2.3 Using Floodin.
Floodin may require hardware including, but not limited to, a computer or mobile device and an Internet connection. You agree to provide all hardware and the Internet connection required to use Floodin and to pay all fees incurred by you when accessing Floodin through an Internet connection.
Floodin strongly recommends that you verify the identity of each person who you are considering granting access to, or who is requesting access to Floodin software.
2.6 Information Collection.
- SALES, COMMISSION AND REMITTANCE
3.1 Sales, Pricing and Commission.
Floodin allows you to sell photos and videos to your customers. The price for photos and videos is according to recommended / market pricing models. Floodin charges a commission fee per video / picture package sold as per agreement. If you collect payment for Floodin sales through your own point of sale system, Floodin charges you a transaction fee (the “Transaction Fee”) or, if Floodin collects payment on your behalf, a commission, which is calculated as a percentage of each transaction (the “Commission”). Floodin uses third party software and services (such as Pay gate,Pay pal) to collect the Transaction Fee and Commission and remit Proceeds (as defined below), which may require you to maintain an active account with such third party or to provide additional information in order to receive funds owed to you. Floodin is not liable to you for the actions of any third party we engage to collect and remit the Transaction Fee and Commission. The Transaction Fee and Commission are detailed in our offer agreement.
3.2 Processing of Sales and Commission.
You acknowledge and agree that Floodin shall, on your behalf, facilitate sales made through Floodin by charging your customers for purchases, deducting processing fees, refunds, returns and chargebacks and associated fees and other charges and our Commission and remitting the remainder to you (“Proceeds”). Proceeds are remitted within a reasonable time frame following the transaction in question.
3.3 Returns and Chargebacks.
You acknowledge and agree that Floodin has sole discretion to determine whether to issue any refund and to dispute chargebacks on your behalf concerning sales made through Floodin and to decline a transaction made through Floodin based on a fraud likelihood analysis.
You are solely responsible for charging, collecting and remitting taxes on all sales you make through Floodin. You shall indemnify, defend and hold Floodin harmless from any liability for, or assessment of, any claims or penalties with respect to such taxes, including any liability for, or assessment of, withholding taxes imposed on Floodin by the relevant taxing authorities with respect to any Proceeds paid to you.
3.5 Credit Card acquiring and security
Online Card transactions will be acquired for Floodin via PayGate (Pty) Ltd who are the approved payment gateway for all South African Acquiring Banks. PayGate uses the strictest form of encryption, namely Secure Socket Layer 3 (SSL3) and no Card details are stored on the website. Users may go to www.paygate.co.za to view their security certificate and security policy. Customer details will be stored by Floodin separately from card details which are entered by the client on PayGate’s secure site. For more detail on PayGate refer to www.paygate.co.za. The merchant outlet country at the time of presenting payment options to the cardholder is South Africa. Transaction currency is South African Rand (ZAR).
- SUBSCRIPTION FEATURES AND SUPPORT
Floodin features available to you are subject to change at any time, on one or more occasions, at Floodins sole discretion without notice or compensation to you. Notwithstanding the foregoing, Floodin shall notify you of any change to the Transaction Fee and Commission through an email or Service notification, such changes taking effect immediately in the case of a reduction in the Transaction Fee and/or Commission and, in the case of an increase, 30 days from the date of notice. The current Transaction Fee, Commission and related terms are detailed in the attached offer agreement.
Floodin may provide you and your customers with Floodin technical and customer support on such terms as set forth in the attached offer agreement. Support terms are subject to change at any time at Floodin’s sole discretion without notice or compensation to you.
- TERM, TERMINATION AND SUSPENSION
The Subscription and Software license granted to you in the Terms and Conditions terminates upon the earliest of: a. Floodin’s termination of the Terms and Conditions, Subscription or Software license and that may occur without notice or reason; b. your failure to pay any amount owed to Floofin; c. your termination of the Service by notifying Floodin at firstname.lastname@example.org; or d. your noncompliance with the Terms and Conditions or Code of Conduct (as defined herein).
Floodin may suspend your Subscription and/or any Account associated with your Subscription at any time without notice or compensation to you for any reason including, but not limited to, violation of the Terms and Conditions and whether a suspension is lifted is at Floodin’s sole discretion.
Upon termination you are not entitled to a refund of any kind. You shall pay any outstanding amounts, taxes, duties and charges as of the date of termination. You are not entitled to Proceeds upon termination unless your Subscription was terminated pursuant to section 5.1(c). Upon termination you shall not be permitted to access Floodin, although your customers may continue to access their orders. Notwithstanding the foregoing, where your Subscription is terminated, Floodin may choose, in its sole discretion, to delete all information associated with your Account, including customer orders.
5.4 Code of Conduct.
The following Code of Conduct applies to your use of Floodin. You agree to not, and not encourage others to: a. circumvent Floodin by selling photos or videos through a mechanism other than the Floodin Payment received / Publish on Portal button, Floodin point of sale system b. use the Floodin API to distribute photos or videos without Floodin service for free, burden the Floodin API, excessively use the Floodin API or use the Floodin API in any manner disapproved of by Floodin; c. use Floodin solely as a data storage platform; d. infringe or violate the right of any third party including but not limited to: (1) contractual rights; (2) copyright, patent, trademark or trade secret rights; (3) privacy rights; (4) publicity rights; or (5) the terms of any confidentiality agreement; e. attempt to gain, or gain, unauthorized access to Floodin, including through the use of another user’s Account or through any method not provided by or approved by Floodin; f. use the Software or Service to transmit any data that contains, or redirects to, any virus or other harmful data; g. encumber, sell or license Floodin, including a Subscription or Account, in any way; h. copy, damage, decompile, disassemble, impair, modify or reverse engineer Floodin or otherwise attempt to derive its source code or meta data files; or i. encourage or engage in illegal activities.
- THIRD PARTY SOFTWARE AND SERVICES
Floodin incorporates software and services provided or licensed to Floodin by third parties (“Third Party Technology”). The Terms and Conditions do not grant you any license, right, title or other interest in Third Party Technology. Use of Third Party Technology may require you to enter into agreements between you and a third party. You shall review, and determine whether to agree to, any Third Party Technology agreement.
7.1 Floodin Ownership Rights.
Floodin retains all right, title and interest in Floodin including, but not limited to, all copyrights, patents, trademarks, trade secrets, industrial designs, utility models and any other rights recognized pursuant to the laws of any country or jurisdiction, whether or not protected by law. Without limiting the foregoing, Floodin hereby retains all rights not expressly granted in the Terms and Conditions.
7.2 Ownership of User Content.
User content includes any content that you or other users, such as your employees, contractors or customers, create, enter, upload or transfer using Floodin or in conjunction with Third Party Technology and including, but not limited to, photographs, audio, video and data transferred through Floodin and analytics information (“User Content”). By providing User Content you represent and warrant that you have all consents, licenses and rights necessary to provide and license the User Content and you hereby grant Floodin an irrevocable, fullypaid, royaltyfree, nonexclusive, perpetual, worldwide license to User Content under all copyright, trademark, trade secret, patent, privacy and publicity rights and any other intellectual or industrial property rights you own or control to use, broadcast, disclose, display, distribute, modify, make derivative works of, publicly perform, publish, record, reproduce, sublicense (on multiple levels), translate, transmit or otherwise exploit for all purposes and in all formats and mediums and for all purposes without attribution, notice, permission, royalty or payment to you or any third party.
7.3 Important Notice Regarding Privacy, Intellectual Property and User Content.
FLOODIN IS PROVIDED TO YOU “AS IS” AND FLOODIN DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, FLOODIN MAKES NO REPRESENTATIONS THAT USE OF FLOODIN WILL NOT INFRINGE ANY COPYRIGHT, PATENT OR TRADEMARK OR OTHER RIGHTS HELD BY A THIRD PARTY. FURTHER AND WITHOUT LIMITING THE FOREGOING, FLOODIN MAKES NO REPRESENTATIONS OR WARRANTIES THAT FLOODIN WILL MEET YOU OR YOUR CUSTOMER’S REQUIREMENTS OR THAT OPERATION OF FLOODIN WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM COMPUTERS OR MOBILE DEVICES OR RESULT IN LOST DATA. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY FLOODIN, ITS AFFILIATES, AGENTS, CONTRACTORS, DIRECTORS, EMPLOYEES, OFFICERS AND PARTNERS WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY EXCLUSIVELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF FLOODIN, INCLUDING RISK OF DATA FAILURE.
- LIMITATION OF LIABILITY, INDEMNITY
9.1 Limitation of Liability.
YOU AGREE THAT FLOODIN SHALL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE TERMS AND CONDITIONS OR USE OF FLOODIN, PRODUCTS SOLD BY FLOODIN OR A THIRD PARTY OR THIRD PARTY TECHNOLOGY AND INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOSS OF DATA, LOSS OF CONTENT, LOSS OF PROFITS, LOSS OF ANY CONTRACT, LOSS OF GOODWILL, NEGATIVE REVIEWS OF YOUR BUSINESS, UNAUTHORIZED OR AUTHORIZED ACCESS TO YOUR ACCOUNT, AND ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF FLOODIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. YOU AGREE THAT FLOODIN MAXIMUM AGGREGATE LIABILITY TO YOU IN ANY CASE WHATSOEVER WILL BE THE GREATER OF: (1) TOTAL COMMISSIONS YOU PAID TO ADVENTURE SOUP IN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD FLOODIN, ITS AFFILIATES, AGENTS, CONTRACTORS, DIRECTORS, EMPLOYEES, OFFICERS AND PARTNERS HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY, INJURY, DAMAGE, COST, LOSS OR EXPENSE THAT ARISES FROM YOUR, OR ANY THIRD PARTY’S, USE OF PICTHRIVE. THIS LIMITATION APPLIES TO ANY CAUSE OF ACTION OR CLAIMS IN THE AGGREGATE, WHETHER IN AN EQUITABLE, LEGAL OR COMMON LAW ACTION ARISING HEREUNDER AND INCLUDING, WITHOUT LIMITATION, VIOLATION OF ANY STATUTE, VIOLATION OF PRIVACY AND/OR INTELLECTUAL PROPERTY RIGHTS, BREACH OF CONTRACT, BREACH OF WARRANTY OR INDEMNITY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY AND OTHER TORTS.
9.3 Indemnification Process.
Floodin shall promptly provide you written notice of the claim against Flooodin and, at your expense, give all reasonable assistance. You may not settle any claim unless it unconditionally releases Floodin of all liability.
- EQUITABLE REMEDIES
You acknowledge that Floodin would be irreparably damaged if the Terms and Conditions are not specifically observed and, therefore, you agree that Floodin shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of the Terms and Conditions, in addition to other remedies available to Floodin under applicable law.
11.1 Relationship of the Parties.
Nothing in the Terms and Conditions shall be construed to create any partnership, joint venture, employer, employee or agency relationship between you and Floodin. Floodin is not a party to any agreement you execute with a customer.
If you have registered a Subscription and Account(s), you agree that FLoodin may use your name and reference you as a customer for advertising, promotion or similar public purposes and hereby grant Floodin a nonexclusive, worldwide license to your name and logo for such purposes.
11.3 Governing law.
11.5 No Waiver.
Floodin failure to assert or enforce any right contained in the Terms and Conditions does not constitute a waiver of that right.
11.6 Entire Agreement.