These TERMS OF SERVICE (the “Terms”) are a binding agreement between you
(“Customer”) and Flow and Format, LLC, an Idaho limited liability company, (“Flow & Format”), and sets forth the rights and obligations related to use of
https://flowandformat.com/ (“Website”) and any Content (defined below). Customer’s use of the Website or Content constitutes acceptance of these Terms. If Customer does not agree to all of the Terms, Customer’s only option is to not access or use the Website or Content.
1. License. Subject to these Terms, including without limitation complete and
timely payment of all fees, Flow & Format grants Customer a non-exclusive, non-
transferable, non-sublicensable, and revocable license to the Content (defined below) to create derivative work based on Customer’s newborn photography business needs (“License”). The License may only be used by an individual and may not be shared with any other person. The Content shall not be sublicensed. The Content can be used in Customer’s email, social media and advertising for purposes of promoting Customer’s photography business and their client communication but cannot be resold as their own. The “Content” is defined as tailored photography guides, email templates, SMS templates, guides, and other brand voice-specific materials, including materials created specifically for Customer in conjunction with Flow & Format.
2. Copyright Notices. Customer shall not remove any watermarks or copyright
notices placed in the Content by Flow & Format. All images must be replaced with Customer's own photographic work unless otherwise noted.
3. Payment. As consideration in full for the rights granted herein, Customer shall
pay to Flow & Format all required fees prior to receipt of the Content.
4. Ownership and Protection.
4.1 Acknowledgment of Ownership. Except for the licenses expressly granted to Customer in these Terms, Customer acknowledges that all right, title, and interest in and to the Content are owned by Flow & Format. If Customer acquires any rights in the Content by operation of law or otherwise, Customer hereby irrevocably assigns such rights to Flow & Format without further action by either party. Customer agrees not to dispute or challenge or assist any person or entity in disputing or challenging Flow & Format’s rights in and to the Content.
4.2 Protection of the Content. Customer will take all required measures to protect and safeguard any copies of the Content within Customer’s possession or
control. Customer will immediately notify Flow & Format in writing with reasonable
detail of any: (i) actual, suspected, or threatened infringement of the Content; (ii)
actual, suspected, or threatened claim that use of the Content infringes the rights of
any third party; or (iii) other actual, suspected, or threatened claim to which the Content may be subject.
4.3 Restriction on Use of Content. Customer will not use the Content in a
way that a reasonable person would find offensive, libelous, obscene, or illegal.
Customer may not resell, transfer, or share any of the Content nor falsely represent
that Customer created the Content.
4.4 Geographical Restriction. The Content may not be used by any Customer located within a 50 mile radius of Boise, Idaho.
5. Confidentiality. Flow & Format may disclose or make available to Customer
information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including the financial terms of the Terms, business operations and strategies, marketing, creative elements, Content, visual representations, research material and
data, specifications, processes, and technological developments (collectively,
“Confidential Information”). Confidential Information does not include information that, at the time of disclosure (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by Customer; (b) is or becomes available to Customer on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from
disclosing such Confidential Information; (c) was known by or in the possession of
Customer before being disclosed by or on behalf of Flow & Format; or (d) was or is
independently developed by Customer without reference to or use, in whole or in part, of any of Flow & Format’s Confidential Information. Customer will: (i) protect and
safeguard the confidentiality of Flow & Format’s Confidential Information with at least the same degree of care as Customer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Flow & Format’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Terms; and
(iii) not disclose any such Confidential Information to any person or entity, except: (A) to Customer’s officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist Customer, or act on its behalf, to exercise its rights or perform its obligations under the Terms; or (B) pursuant to applicable federal, state, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Customer will first make commercially reasonable efforts to provide Flow & Format with: (1) prompt written notice of such requirement so that Flow & Format may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Flow & Format’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
6. Representations and Warranties.
6.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it has the full right, power, and authority to enter into these Terms and to perform its obligations hereunder;
(b) the execution of these Terms by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary actions of the party; and
(c) these Terms will constitute the legal, valid, and binding obligationof such party, enforceable against such party in accordance with its terms.
6.2 Customer Representations and Warranties. Customer represents and
warrants that:
(a) Customer will not engage or participate in any activity or course
of action that could diminish or tarnish the image or reputation of the Content
or Flow &Format, or cause confusion as to the ownership of the Content; and
(b) to Customer’s knowledge, Customer’s use of the Content will not
infringe, misappropriate, or otherwise violate the intellectual property or other
rights of any third party or violate any applicable regulation or law.
6.3 Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FLOW & FORMAT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES
THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
7. Indemnification.
7.1 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Flow & Format and its officers, directors, employees, agents, affiliates, successors, and assigns (each an “Indemnified Party”) from and against any
losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements,
interest, awards, penalties, fines, costs, or expenses of whatever kind, including
reasonable attorneys’ fees and the cost of enforcing any right to indemnification
hereunder and the cost of pursuing any insurance providers, arising out of or in
connection with any third-party claim, suit, action, or proceeding (each a “Third-
Party Claim”) relating to any actual or alleged breach by Customer of its
representations, warranties, covenants, or other obligations hereunder.
8. Term and Termination.
8.1 Term. The term of this Terms commences as of the date Customer
receives access to the Content and will continue until termination.
8.2 Termination for Cause. Flow & Format party may terminate these
Terms upon written notice to Customer if Customer breaches the Terms and fails to
cure such breach within 10 days after receiving written notice thereof.
8.3 Effect of Termination. On the termination of the Terms for any reason,
all rights licensed under this Terms will revert immediately to Flow & Format and
Customer shall cease any further use of the Content, erase all digital copies of the
Content in its control and possession and return or, at Flow & Format’s written
request, destroy, any tangible copies of the Content.
8.4 Surviving Rights. Any rights or obligations of the parties in the Terms
which, by their nature, should survive termination of this Terms will survive any such
termination.
8.5 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FLOW & FORMAT WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS TERMS FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS TERMS), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER FLOW & FORMAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THIS LIMITATION IS DEEMED UNENFORCEABLE BY ANY APPLICABLE STATE LAW, THEN FLOW & FORMAT’S LIABILITY IS LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO CUSTOMER’S CLAIM.
9. General.
9.1 Entire Terms. These Terms, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter.
9.2 Severability. If any term or provision of the Terms is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will
not affect the enforceability of any other term or provision of the Terms or invalidate
or render unenforceable such term or provision in any other jurisdiction.
9.3 Assignment. Customer shall not assign any of its rights or delegate any
of its obligations under these Terms. Any purported assignment or delegation is null
and void. Flow & Format may freely assign or otherwise transfer any of its rights or
delegate any of its obligations under these Terms. These Terms are binding upon
and inures to the benefit of the parties hereto and their respective permitted
successors and assigns.
9.4 Choice of Law; Venue. The Terms and all matters arising out of or relating to the Terms are governed by, and construed in accordance with, the laws of Idaho. Any suit, action, or proceeding arising out of or relating to the Terms will be instituted exclusively in the federal or state courts, in each case located in Ada County, Idaho, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
9.5 Relationship of the Parties. Nothing contained in the Terms will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for nor bind the other party in any manner whatsoever.
9.6 No Third-Party Beneficiaries. This Terms is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Terms.
9.7 Amendment and Modification. Flow &Format may modify these Terms from time to time, and Customer’s continued use of the website and Content constitutes its acceptance of such changes.
9.8 Waiver. No waiver by Flow & Format of any of the provisions hereof will be effective unless explicitly set forth in writing. No failure to exercise, or delay in
exercising, any right, remedy, power, or privilege arising from these Terms will
operate or be construed as a waiver thereof.