SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
References to “Dispute” mean any claim, conflict, controversy, disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any Terms contemplated by the Terms.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
References to the “Services” mean any and all services offered by us, including but not limited to image sharing and product linking via mobile applications and/or the Web site.
References to “us,” “we,” and/or “our” mean BlushoTM, and/or MYLO Media S.L.
References to the “Web site” mean the Web site bearing the URL www.blusho.com.
References to “you,” and/or “User,” mean the User of the Web site and/or Services.
2.1. About Us; BlushoTM not Vendor; No Endorsement.
BlushoTM is an image-based sharing Web site. We are not an image back-up service and should not be used as a platform on which to store photographs, images and/or other information. Though products may be purchased by following URLs, tags, and other links associated with Submissions (as defined herein) to the Services provided by BlushoTM, it is s not a vendor or merchant of said products and shall have no liability therefore nor shall it be a party to any contract for purchase of a Third-Party product. We do not endorse or otherwise make any warranties, express or implied, regarding any Submission or any product linked to or otherwise promoted via any Submission.
2.2 Accuracy, Completeness and Timeliness of Information.
We are not responsible if information made available via the Web site and/or Services is not accurate, complete or current. You acknowledge further that any reliance on the Web site and/or Services is at your own risk.
2.3 Errors in Web Site and/or Services.
2.4. Modifications and Changes to Terms and Conditions.
2.5. Modifications and Changes to the Web Site and/or Services.
We may modify, add to, suspend, or delete any aspect of this Web site or Service offered by us, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
2.6. Access to Web site and/or Services.
Though we try to make the Web site and Services available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Web site and Services will be at all times available.
We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the Web site and/or Services.
2.7. Right of Refusal, Limitation, Discontinuation; and Termination.
We reserve the right to refuse to provide access to the Web site and/or the Services for any reason at any time at our sole discretion. We may, in our sole discretion, limit or cancel a User Account and/or remove any Submission from a User for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account termination. We do not guaranty that any Submission will be featured and/or made available on the Web site and/or Services.
2.8. Prohibited Uses of Web site and Services.
You agree and acknowledge that you shall not use the Web site and/or the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, governmental, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Web site; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Web site and/or the Services. We reserve the right to terminate your use of the Web site and/or the Services for violating any of the prohibited uses or for any other reason at its sole and exclusive decision.
2.9. Accuracy, Completeness and Timeliness of Information.
We are not responsible if information made available on the Web site and/or the Services is not accurate, complete or current. You acknowledge that the Web site and the Services are provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information.
3.1. Online Accounts.
3.2. Multiple Accounts Prohibited.
You agree you shall not have no more than one (1) account and shall not sell, trade or transfer that account to any other person or entity.
3.3. Account Guidelines.
The Web site and/or Services may contain the ability to share photographs and/or images through one or more platforms, comments sections, discussion forums, bulletin boards, Web sites, landing pages, social media outlets and/or other interactive features ("Interactive Areas”) in which Users and Third Parties may communicate. By participating in Interactive Areas, you agree and acknowledge that you:
Shall not upload, distribute or otherwise publish to the Web site and/or the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; and
Shall not threaten or verbally abuse other Users, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or "spam”; and
Shall not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Interactive Areas and use of the Web site and/or the Services; and
Shall not use the Interactive Areas to distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or Services; and
Shall not upload, post or otherwise transmit any content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability; and
Shall not post unauthorized commercial communications (such as spam); and
Shall not upload, post or otherwise transmit any content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; and
Shall not upload, post or otherwise transmit content that does not generally pertain to the designated topic or theme of any Interactive Area; and
Shall not impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise misrepresent your affiliation with any person or entity; and
Shall not interfere with any other User's right to privacy, including by harvesting or collecting personally-identifiable information about other Users of our Interactive Areas or posting private information about a Third Party; and
Shall not engage in unlawful multi-level marketing, such as a pyramid scheme; and
Shall not upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component; and
Shall not interfere with or disrupt the Web site, Services, the Interactive Areas or the servers or networks connected to the Web site or the Interactive Areas, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, Web site, and/or the Interactive Areas; and
Users agree further and acknowledge that any profile they create may be edited, removed, modified, published, transmitted, and displayed by us, and they waive any rights they may have in having the material altered or changed in a manner not agreeable to them.
3.4. Rights in Submissions.
Should you submit, display, publish or otherwise post any content to an Interactive Area, (hereinafter “Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, marketing, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any Third Party.
You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
3.5. Right to Monitor.
We shall have the right to monitor your Account in our sole and exclusive discretion.
4.1. Intellectual Property Rights Not Waived.
Furthermore, all material ("Materials") displayed or transmitted on this Web site and/or Services, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics are owned by us and are protected by Spanish and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Web site, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on this Web site and/or Services for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Material. You may not archive or retain any of the Materials accessed on this Web site and/or Services without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to email@example.com.
In addition to Submissions you may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes without limitation the right for us or any Third Party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User's personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to BlushoTM or its initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by Third Parties, or independently developed or considered by us, shall be without obligation to you.
5.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from Third Parties on the Web site and/or the Services. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of Third-Party advertisers on the Web site and/or the Services.
5.2. Use of Third-Party Tools.
We may provide you with access to Third-Party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional Third-Party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant Third-Party provider(s).
5.3. Third-Party Links.
Certain content, products and Services available via our Web site and/or Services may include materials from Third-Parties.
Third-Party links on this site may direct you to Third-Party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any Third-Party materials or Web sites and/or services, or for any other materials, products, or services of Third-Parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any Third-Party Web sites. Please review carefully the Third-Party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding Third-Party products should be directed to the Third-Party.
6.1. Disclaimer of Warranty; Limitation of Liability.
(A) YOU AGREE THAT USE OF THE WEB SITE AND THE SERVICES IS AT YOUR SOLE RISK. NEITHER US nor our AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE use of the Web site AND/OR THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO we MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE AND/OR THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(B) ANY DOWNLOADABLE SOFTWARE, PRODUCTS OR OTHER MATERIALS, WITHOUT LIMITATION, IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS AND CONDITIONS. WE MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AGAINST INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS AND CONDITIONS AS TO ANY PRODUCT FEATURED IN ANY SUBMISSION OR LINKED TO VIA ANY THIRD-PARTY WEB SITE AND/OR SERVICES.
(C) ALTHOUGH ALL INFORMATION AND MATERIALS CARRIED ON THE WEB SITE AND THE SERVICES ARE BELIEVED TO BE RELIABLE, WE MAKE NO REPRESENTATIONS, NEITHER EXPRESSLY NOR IMPLIEDLY, AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE WEB SITE AND/OR THE SERVICES.
(D) IN NO EVENT SHALL WE, OUR EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, AND/OR OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE WEB SITE AND/OR THE SERVICES.
(E) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY-IDENTIFIABLE INFORMATION. BY utilizing THE WEB SITE AND/OR THE SERVICES YOU ACKNOWLEDGE AND AGREs TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE Utilize THE WEB SITE.
(F) YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE WEB SITE AND/OR THE SERVICES OR ANY OTHER GRIEVANCE, SHALL BE YOUR DISCONTINUATION OF ACCESS TO OR UtilizATION OF THE WEB SITE AND/OR THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our s affiliates and respective directors, officers, employees and agents.
You agree to defend, indemnify and hold us harmless, as well as our affiliates and vendors and respective directors, officers, Users and agents, from and against all claims, SUITS, and expenses, including attorneys' fees, arising out of OR RELATED TO (a) YOUR USE OF THE WEB SITE AND/OR SERVICES; (B) your noncompliance with or breach of this Agreement; (C) your use of third-Party products, links, advertisements, and/or tools; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; or (E) the unauthorized use of the Web site AND/OR SERVICES by any other person using your information.
6.3. No Warranty by Us.
Except as specifically set forth in these Terms, we make no warranties, express or implied, as to the Web site. We specifically disclaim any and all implied warranties, including but not limited to any implied warranties of merchantability or fitness for a particular purpose.
7.1. Governing Law.
These Terms shall be governed and construed in accordance with the laws of Spain, without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in Spain and any cause of action that relates to or arises from these Terms and/or the Web site and/or the Services must be filed therein unless subject to the binding arbitration provisions of Section 7.2, infra.
The Parties agree that any dispute concerning, relating, or referring to these Terms and/or the Web site and/or the Services shall be resolved exclusively by binding arbitration in accordance with the substantive laws of Spain and shall be brought for arbitration in Spain. The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is void or voidable. Nothing herein prevents either Party from seeking any interim injunction it deems necessary in order to preserve the status quo prior to the resolution of any dispute, in any jurisdiction.
7.3. Attorneys’ Fees and Costs.
In case suit, arbitration, or other legal action is instituted to interpret or enforce any of the provisions of these Terms, the prevailing Party therein shall be awarded all reasonable and necessary fees for investigations, depositions, as well as fees for accountants and witnesses (expert or otherwise) reasonably incurred by that Party in connection with such suit or action, plus such sums as may be adjudged reasonable for that Party’s attorney fees incurred prior to and throughout such suit or action, including all hearings, trials, and appeals.
Should you wish to terminate your use of the Web site and/or Services you may do so at any time by following the Account deactivation information contained therein. In the event of termination by us or by you, for any reason whatsoever, any and all Submissions may immediately and irrevocably cease to be accessible though we do not guaranty that such Submissions will be removed.
8.2. Affiliate Disclosure.
We may have a business relationship with Third-Parties and affiliates to whose products we link and promote through the Services. Because of this relationship we may earn a commission on products purchased by a user from a Third-Party affiliate.
8.3. Server Location; International Transfer.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
Any waiver of a right under these Terms shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
8.6. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of god or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
We shall have the right to assign and/or transfer these Terms and our rights and obligations hereunder to any Third Party after notifying you as provided for herein. You agree and acknowledge that you shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms without our prior written consent in our sole and exclusive discretion.
8.8. Rights of Third Parties.
These Terms do not give any right to any Third Party except that any provision in these Terms.
8.9. Relationship of the Parties.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
8.11. Updates & Effective Date.