End User License Agreement
This End User License Agreement (EULA) (“Agreement”) is equivalent to a signed, written contract. We have attempted to make this document as brief and readable as possible, but it is your responsibility to read and understand this document. By downloading or using this Software (as defined below), you are agreeing to be bound by the terms of the EULA.
To enter into this agreement, you must be (i) eighteen (18) years of age or older and (ii) be able to form binding contracts under the laws applicable to you. By installing or using this Software you are representing and warranting that both (i) and (ii) above are correct.
1.1. Software. Software means the machine-readable code and data associated with the Flamingo application. Software also includes all server-side hardware, machine-readable code, databases, and data associated with the Flamingo application.
1.2. Owner. Owner means Flamingo, LLC, a Minnesota Limited Liability Company, with offices in Ramsey County, Minnesota.
1.3. Licensee. Licensee means the person, persons, entity, or entities using the Software under this Agreement.
1.4. User. User means any person, persons, entity or entities using the Software.
2.1. Grant of License. Owner grants to Licensee a limited, non-exclusive, non-transferable, royalty-free license to access use the Software only in accordance with the terms of this Agreement. This license is conditioned upon Licensee’s continued compliance with the terms of this Agreement. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Software, and, if you sell or otherwise transfer a device on which the application is installed to a third party, you must remove the Application from your device before doing so. This license does not grant any ownership interest to Licensee in the Software. Nor does this license entitle Licensee to use any trademark or image displayed in the Software.
2.2. License to Owner. Any communications or material of any kind that Licensee posts, emails, or otherwise transmits to Owner using the Software, including data, questions, comments, or suggestions (Licensee’s “Communications”) will become the property of Owner. Licensee grants a license to Owner to use any ideas, concepts, know-how, or techniques contained in Licensee’s Communications for any purpose, including developing and marketing products containing such information. Owner, its affiliates, and agents are permitted, but not obligated to monitor, review, or retain Licensee’s Communications for any purpose whatsoever. Licensee agrees that these monitoring activities do not entitle Licensee to any cause of action or other right with respect to the manner in which Owner, its affiliates, and agents monitor Licensee’s Communications and enforce or fail to enforce the terms of this Agreement. In no event will Owner, its affiliates, or agents be liable for any costs, damages, expenses, or any other liabilities incurred by Licensee as a result of monitoring activities by Owner, its affiliates, or agents.
3. Protection of Children.
3.1. Not for Children. The Software is not intended to be used by and is inappropriate for children under 13 years of age. Licensee represents and warrants that s/he is over 13 years of age.
3.2. Restricted Use. Licensee represents and warrants that s/he will not allow children under 13 years of age to use this software.
4. Acknowledgement of Risks.
4.1. Acknowledgement. Licensee acknowledges that Owner does not investigate, vet, or otherwise ensure the authenticity of any User. Licensee acknowledges that s/he fully understands and fully assumes all risks associated with meeting or interacting with another User. Licensee shall take appropriate precautions to protect him/herself against such risks.
4.2. Release of Liability. Licensee expressly releases Owner from all liability for monetary, physical, or other damages associated with meeting or interaction with another User.
4.3. Use of Cellular Data. Owner does not charge for the Software. Licensee assumes all charges resulting from Licensee’s carrier’s data rates which may apply to Licensee’s use of the Software.
4.4. Security. Electronic communications using the Software may not always be encrypted. Licensee acknowledges that there is a risk that data, including personal financial data, may be accessed by unauthorized third parties when communicated between Licensee and Owner or between Licensee and other parties.
5. Acceptable Uses
5.1. Personal, Non-Commercial Use. Licensee agrees that the Software is provided for personal, non-commercial use. Licensee shall not use the software for a commercial use.
6. Restricted Uses
6.1. Modification. Licensee may not modify, alter, or create any derivative works of the Software.
6.2. Reverse Engineering. Licensee may not reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code or data from the Software. Licensee may not create updates for the Software.
6.3. No Access to Databases or APIs. Licensee may not access or attempt to access databases or APIs (Application Programming Interfaces) provided by the software.
6.4. No Automated Data Capture. Licensee agrees not to use third-party mechanical or electronic means to capture data from the Software.
6.5. Illegal use. Licensee shall not use any feature of the Software for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful. Licensee shall not upload, post, email or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interfere with the functionality of any computer software, hardware, or telecommunications equipment.
6.6. Violation of Intellectual Property. Licensee shall not use the Software to upload, post, reproduce, or distribute any material protected by copyright or any other intellectual property right in a way that infringes on that right, unless permission from the owner of the right(s) is obtained.
6.7. Solicitation. Except for those related to the stated purpose of the Software, Licensee shall not use the Software to upload, post, or transmit any advertising or promotional materials, including junk mail, surveys, spam, chain letters, pyramid schemes, or any other form of unauthorized solicitation or unauthorized communication.
6.8. Personal information. Licensee shall not use the Software to obtain personal information about another User, except as reasonably necessary.
6.9. Use While Driving. Licensee shall not use the Software while operating a motor vehicle, even if doing so is legally permitted in the applicable jurisdiction.
6.10. Reimbursement of Expenses. If Licensee engages in any of the restricted uses listed in this Section, Licensee agrees to fully reimburse Owner for all expenses, including personnel, hardware, software, legal, and other expenses caused by or related to Licensee’s engagement in a restricted use.
7. Support, Maintenance, and Updates
7.1. Updates. Licensee’s use of any Updates to the Software provided by Owner shall be subject to all the terms and conditions of this Agreement.
7.2. Support. Owner may provide support to users of the Software but is not obligated to do so.
8. Term and Termination
8.1. Term. This License Agreement is effective upon installation and will continue in force until terminated.
8.2.1. Licensee’s right of termination. Licensee may terminate this Agreement at any time by uninstalling the Software
8.2.2. Owner’s right of termination. Owner may terminate this Agreement at any time upon notice to the Licensee. Upon such notice, Licensee is required to uninstall, delete, and destroy all copies of the Software and associated data.
9.1. "As-Is". Owner provides the Software "as is" with all faults, defects and errors, and without warranty of any kind. By using the software, Licensee accepts any risk that the software may cause damage to the device on which it is used and all other risks of economic or non-economic damage.
9.2. Disclaimer. Owner disclaims, to the fullest extent authorized by law, any and all warranties, whether express or implied, including, without limitation, any implied warranties of merchantability, non-infringement, or fitness for a particular purpose.
9.3. Hyperlinks. The Software may contain links to third party websites. Owner does not control information on these websites and makes no representations whatsoever concerning the content, accuracy, security, or privacy of any third party website. If the link is provided by Owner, Licensee acknowledges that this does not constitute an endorsement, authorization, sponsorship, or affiliation with the third party site, its owners, or its providers by Owner. Owner cautions Licensee to understand all risks of retrieving, using, relying upon, or purchasing anything via the Internet. Licensee shall not hold Owner, its affiliates, or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on third party websites.
10.1.1. Proprietary Rights. The Owner retains all proprietary rights to the Software.
10.1.2. Ownership of Data. The Owner retains all rights to any data contained in or stored by the Software, including data created by the Licensee.
10.2. Third Party Software
10.2.1. Use of Third Party Software. The Software may contain third party software.
10.2.2. Third Party Software License. The use of third party software is governed by the terms of the Third Party Software license.
11. Limitation of Liability. In no event will Owner be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the Software, the Software content or this Agreement, whether based on contract, tort, strict liability or other theory, even if Owner has been advised of the possibility of such damages. Under no circumstances, even including negligence, will Owner, its affiliates, or agents be liable for damages of any kind resulting from your inability to use the Software.
12. General Provisions
12.1. Limitation on Actions. Any claim arising out or related to this Agreement must be brought no later than one year after it has accrued.
12.2. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
12.3. Amendment. This Agreement may be amended by the Owner at any time. Your use of the Software indicates that you aware that this Agreement may be amended without notification to you. A copy of the current version of this Agreement is available on the website for the Software. Continued use of the Software after such amendment indicates Licensee’s acceptance of such amended Agreement.
12.4. Assignment. Neither this Agreement nor any rights or obligations under it may be assigned or otherwise transferred by Licensee without written consent of Owner. All assignments without consent are void. Owner may assign their rights and obligations under the Agreement at any time without notice or consent.
12.5. Delegation. No party may delegate his or her obligations to perform under this Agreement.
12.6. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
12.7. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Minnesota, without regard to its conflict of laws rules.
12.8. Venue. Any action under this Agreement shall be brought in the Minnesota District Court for Ramsey County, unless the Owner waives this provision by written consent or by filing a suit in another county’s district court or a federal court with jurisdiction.
12.9. Waiver. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement does not operate as a waiver; nor does any single or partial exercise of any right, power or privilege preclude any other or further exercise of that right, power or privilege or other rights, powers, and privileges under this Agreement.
12.10. Survival. Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
12.11. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
Last updated August 6, 2015