Terms of Use
Effective date: August 01, 2019
Effective date: August 01, 2019
These Terms of Use, together with Flair’s Privacy Policy, set forth
the terms and conditions (these “Terms”) that apply to your access and
use of all Flair products and services (together, the “Flair Services”
or the “Services”), that are made available to you through our
websites including but not limited to
getflair.io
, as well as
through certain downloadable mobile applications (together, the
“Sites”). “Flair” includes Flair Technologies, Inc. and its officers,
directors, employees, consultants, affiliates, subsidiaries, third
party service providers, and agents (collectively referred to as
(“Flair”, “us”,
“our”, and “we”).
By using or accessing the Flair Services you agree to these Terms, as
updated from time to time in accordance with the terms set forth
herein. These Terms set forth the legally binding terms and conditions
that govern your use of the Flair Services. By downloading,
installing, or using the Flair Services, or by clicking the “I agree”
or similar icon, you acknowledge and agree that you have read,
understood, and agree to be bound by these Terms and the Privacy
Policy, located at
https://www.getflair.io/terms-of-use
on
behalf of yourself or the entity that you represent. You represent and
warrant that you have the right, authority, and capacity to enter into
these Terms on behalf of yourself or the entity that you represent.
You may not access or use the Flair Services or accept the Terms if
you are not at least 18 years old. The Flair Services are intended for
U.S. residents only. If you do not agree to the Terms, you should not
install or use the Flair Services or you should stop using the Flair
Services and uninstall it.
Flair may offer additional products and services from time to time.
Certain features of the Flair Services may be subject to additional
guidelines, terms, or rules, which will be posted on the Flair
Services or the Sites in connection with such features. All such
additional terms, guidelines, and rules are incorporated by reference
into these Terms.
We reserve the right to update and modify these Terms at any time, so please review them frequently either via the Services or by visiting https://www.getflair.io/terms-of-use . Your continued use of the Services after notification of any changes will signify your acceptance of such changes to these Terms.
1.1. License. In consideration of your payment of any applicable fees
for the Services and subject to the terms and conditions of these
Terms, Flair hereby grants you a limited, non-exclusive,
non-assignable, non-transferable, revocable right, during the Term, to
access and use the Flair Services, either through the Sites or through
an application programming interface (“API”). In
order to use the Services, you will need to create and maintain an
account (“Account”). In order to access and use your
Account, you will be provided with a username and password (“Account Credentials”).
1.2. Certain Restrictions. The rights granted to you in these Terms
are subject to the following restrictions: you may not: (a)
sublicense, sell, rent, lease, transfer, assign, distribute, host, or
otherwise commercially exploit or monetize the Service, whether in
whole or in part, or any content displayed on the Flair Services, or
otherwise make the Flair Services available to any third party without
our permission; (b) modify, make derivative works of, disassemble,
reverse compile or reverse engineer any part of the Flair Services;
(c) access the Flair Services in order to build a similar or
competitive mobile application, website, product, or service; or (d)
except as expressly stated herein, copy, reproduce, distribute,
republish, download, display, post or transmit in any form or by any
means the Flair Services or any portion of the Flair Services. Unless
otherwise indicated, any future release, update, or other addition to
functionality of the Flair Services shall be subject to these Terms.
All copyright and other proprietary notices on the Flair Services (or
on any content displayed on the Flair Services) must be retained on
all copies thereof.
1.3. Use of the Flair Services. You are responsible for all activity
occurring under your Account and shall (i) abide by all applicable
local, state, national and foreign laws, guidelines, treaties and
regulations in connection with your use of the Flair Services,
including those related to advertising, data privacy, international
communications and the transmission of technical or personal data, and
all compulsory industry self-regulations “as well as all fair housing
laws (including the Fair Housing Act (42. U.S.C. § 3601 et. seq.)),
the Federal Do-Not Call rules, and the Federal CAN-SPAM rules,
(“Applicable Laws”), (ii) not use the Flair Services
in a manner that could reasonably be expected to damage the Flair
Services. You shall notify Flair immediately of any unauthorized
access to or use of your Account or Account Credentials or any other
known or suspected breach of security involving your Account or
Account Credentials, and, in such event, you shall use reasonable
efforts to stop immediately any copying, distribution or misuse data
and/or the Flair Services (or any content thereon) that is known or
suspected by you. You are responsible for maintaining the
confidentiality of your Account Credentials. We cannot and will not be
liable for any loss or damage arising from your failure to comply with
the above requirements. We reserve the right to take any action that
we deem necessary to ensure the security of the Flair Service and your
Account, including without limitation changing your password,
terminating your Account, or requesting additional information to
authorize activity on your Account.
1.4. Requirements. You are responsible for providing and maintaining,
at your own risk, option, and expense, any hardware, equipment.
software, and communication lines required to access and use the Flair
Services, and we reserve the right to change the access configuration
of the Flair Services at any time without prior notice.
1.5. Modification. We reserve the right, at any time, to modify,
suspend, or discontinue the Flair Services (in whole or in part) with
or without notice to you. You agree that we will not be liable to you
or to any third party for any modification, suspension, or
discontinuation of the Flair Services or any part thereof.
1.6. Provision of Services. Flair shall provide the Flair Services in
accordance with the features, pricing terms and other metrics as set
forth in this Agreement and the Sites. Flair and its licensors reserve
all rights not expressly granted hereunder, including the right, in
its sole discretion to continually evolve the Flair Services and all
related technologies, to upgrade, modify or discontinue, temporarily
or permanently, all or a part of the Flair Services and to regulate
traffic or your use of the Flair Services at any time and without
notice in its sole discretion. In the event that Flair exercises any
such right and your access or use of the Flair Services is materially
restricted, however, Flair will use reasonable efforts to provide you
with notice of the actions taken as soon as practicable.
2.1. Flair Ownership. Excluding any Materials that you may provide (as
defined below), you acknowledge that all the intellectual property
rights, including copyrights, patents, trademarks, and trade secrets,
in the Flair Services and its content are owned by us or by our
suppliers. Neither these Terms (nor your access to the Flair Services)
transfers to you or any third party any rights, title or interest in
or to such intellectual property rights, except for the limited access
rights expressly set forth in Section 1.1. We and our suppliers
reserve all rights not granted in these Terms. There are no implied
licenses granted under these Terms.
2.2. Your Data. You, and not Flair, shall own any information,
Materials and data provided to Flair for use in connection with the
Flair Services (“Your Data”). You, not Flair, shall have sole
responsibility for the accuracy, quality, integrity, legality,
reliability, appropriateness, and intellectual property ownership or
right to use of Your Data, and, except for a material breach of this
Agreement by Flair in connection with Your Data, Flair shall not be
responsible or liable in any manner for Your Data. Under no
circumstance shall you provide Flair with personal information,
personally identifiable information, personal data or information
capable of identifying a particular individual.
2.3. License. Flair shall be free to use Your Data in an aggregate
anonymized form so long as it is not capable of identifying you for
Flair’s own internal use and marketing, and you hereby grant Flair a
worldwide, non-exclusive, perpetual, royalty-free, fully paid-up
license to use such aggregate information for such purposes including,
without limitation, improving the operation of the Flair Services,
statistical analysis and distributing aggregated statistics to
clients, potential clients and the general public.
3.1. Account Creation. In order to use certain features of the Flair
Services, you must register for an Account and provide certain
information about yourself as prompted by the account registration
form. You represent and warrant that: (a) all required registration
information you submit is truthful and accurate; (b) you will maintain
the accuracy of such information. You may terminate your Account at
any time, for any reason, by following the instructions on the Flair
Services. We may also suspend or terminate your Account in accordance
with these Terms.
3.2. Subscriptions. It is free to register for an Account, however we
also may offer additional premium subscriptions for you to purchase
(each a “Subscription”). Details on the costs and the specific
services provided with a particular Subscription will be found on the
registration page for that Subscription. By purchasing a Subscription,
you authorize us to charge you, and you agree to pay, on a recurring
basis (e.g., monthly or yearly) for the applicable Subscription
charge, any and all taxes or possible transaction fees, and any other
charges incurred in connection with your use of the Subscription, such
as payments to the advertising platforms. Subscriptions will
automatically renew for the same time period at our then-current rates
unless you cancel it according to these Terms. To avoid charges for a
new Subscription period, you must cancel the Subscription before the
end of the then-current Subscription period by following the
instructions on the Flair Services. If you cancel your Subscription,
you may use your Subscription until the end of the period you last
paid for, but you will not be eligible for a prorated refund and your
Subscription will not be renewed when that period expires.
3.3. Changes. We reserve the right to add or remove features or
services from a particular Flair Service, to add new premium services
or to stop providing a premium service at any time in our sole
discretion. We will use reasonable efforts to provide you as much
notice as we can if we do so. We may change the prices we charge for
the Flair Services and/or the Subscriptions from time to time and will
communicate any price changes to you in advance. To the extent any
such price changes apply to you, those changes will take effect at the
start of the next billing cycle for your Flair Services following the
date of the price change. As permitted by local law, you accept any
applicable new price by continuing to use the Flair Services after the
price change takes effect. If you do not agree with any price change
that is applicable to you, you have the right to reject the change by
cancelling the Flair Services prior to the price change going into
effect.
3.4. Payments.
3.4.1. Access to certain Flair Services and engaging in certain
transactions may require you to pay fees (“Fees”). Fees will include
both the Subscription charges to Flair as well as charges from the
advertising platforms themselves, each of which will be charged to
your Account separately. You may be asked to supply information
relevant to such transactions, including without limitation bank
account and routing numbers, credit/debit card number, credit/debit
card verification or other security code, the expiration date of your
credit/debit card, and your address affiliated with your selected
payment method. We will treat any such information provided through
the Flair Services in accordance with this Agreement and the Privacy
Policy. Verification of information may be required prior to the
acknowledgment or completion of any transaction. You represent and
warrant that you have the legal right to use any banking, credit/debit
card(s) or other Payment Method (as defined below) that you use in
connection with any transaction.
3.4.2. You may be required to register your personal and/or financial
information with us in order to use certain areas of the Flair
Services, for example, to initiate transactions. In doing so, you
agree that you will provide accurate and complete information. We may
refuse to process your information or requested transactions if we
believe that you may be: i) impersonating another person; ii)
violating the intellectual property or other rights of any entity;
iii) posting materials that are offensive or that violate Applicable
Law; or iv) providing any information that we may otherwise reject for
any or no reason in our sole discretion.
3.4.3. We, or a third-party payment processor (“Payment Processor”) may process your payment and charge Fees to you through your
registered Account for use of the Flair Services. When you use the
Flair Services to make a payment, you consent to our use of a Payment
Processor to facilitate and/or process payments made or received
through the Flair Services, including, without limitation, consent to
access, charge or debit a payer’s credit card, debit card, bank
account or other payment mechanism. You agree to pay all Fees relating
to your Transactions to us through the Payment Processor, and you
authorize us to charge your chosen payment provider (e.g., bank
account) (“Payment Method”) through the Payment
Processor. The processing of payments will be subject to the terms,
conditions and privacy policies of the Payment Processor in addition
to this Agreement. We are not responsible for errors made by the
Payment Processor.
3.4.4. Your Account will be considered delinquent if payment in full
is not successful when a charge is initiated. Unless specified in an
invoice, amounts due are exclusive of all applicable taxes, levies, or
duties, and you will be responsible for payment of all such amounts.
If you believe that any specific charge under this Agreement is
incorrect, in order to obtain a credit, you must contact us in writing
within thirty (30) days after the payment due date, and set forth the
nature and amount of the requested correction. Otherwise, charges are
final.
3.4.5. In addition to other applicable remedies, we reserve the right
to suspend and/or terminate your access to the Flair Services and/or
terminate this Agreement if your Payment Method is declined or fails
and your account therefore is delinquent.
4.1. Your Materials. Any data, text, graphics, photographs and their
selection and arrangement, and any other materials provide by you or
uploaded to the Flair Services are your “Materials.”
You represent and warrant that your Materials are original to you and
that you exclusively own the rights to such Materials, including the
right to grant all of the rights and licenses in these Terms without
Flair incurring any third-party obligations or liability arising out
of its exercise of such rights and licenses. All of your Materials are
your sole responsibility, and Flair is not responsible for any
material that you upload, post, or otherwise make available. By
uploading, distributing, transmitting or otherwise using your
Materials with the Flair Services, you grant to us a perpetual,
nonexclusive, transferable, royalty-free, sublicensable, and worldwide
license to use, host, reproduce, modify, adapt, publish, translate,
create derivative works from, distribute, perform, and display your
Materials in connection with operating and providing the Flair
Services and any services we provide, subject to the terms of the
Privacy Policy. Flair does not guarantee the accuracy, quality, or
integrity of any user Materials posted by you or any other user of the
Flair Services and you agree that Flair will not under any
circumstances be liable for any user Materials, including, but not
limited to, errors in any user Materials, or any loss or damage
incurred by use of user Materials. We reserve the right to remove and
permanently delete your Materials from the Flair Services with or
without notice for any reason or no reason.
4.2. Feedback. If you provide us with any feedback or suggestions
regarding the Flair Services (“Feedback”), you hereby assign to us all
rights in such Feedback and agree that we shall have the right to use
and fully exploit such Feedback and related information in any manner
it deems appropriate. We will treat any Feedback you provide to us as
non-confidential and non-proprietary. You agree that you will not
submit to us any information or ideas that you consider to be
confidential or proprietary.
5.1. You agree not to use the Flair Services to collect, upload,
transmit, display, or distribute any Materials (i) that violates any
third-party right, including any copyright, trademark, patent, trade
secret, moral right, privacy right, right of publicity, or any other
intellectual property or proprietary right; (ii) that is unlawful,
harassing, abusive, tortious, threatening, harmful, invasive of
another’s privacy, vulgar, defamatory, false, intentionally
misleading, trade libelous, pornographic, obscene, patently offensive,
promotes racism, bigotry, hatred, or physical harm of any kind against
any group or individual or is otherwise objectionable; (iii) that is
harmful to minors in any way; or (iv) that is in violation of any law,
regulation, or obligations or restrictions imposed by any third party.
5.2. In addition, you agree not to: (i) upload, transmit, or
distribute to or through the Flair Services any computer viruses,
worms, or any software intended to damage or alter a computer system
or data; (ii) send through the Flair Services unsolicited or
unauthorized advertising, promotional materials, junk mail, spam,
chain letters, pyramid schemes, or any other form of duplicative or
unsolicited messages, whether commercial or otherwise; (iii) use the
Flair Services to harvest, collect, gather or assemble information or
data regarding other users, including e-mail addresses, without their
consent; (iv) interfere with, disrupt, or create an undue burden on
servers or networks connected to the Flair Services, or violate the
regulations, policies or procedures of such networks; (v) attempt to
gain unauthorized access to the Flair Services (or to other computer
systems or networks connected to or used together with the Flair
Services), whether through password mining or any other means; (vi)
harass or interfere with any other user’s use and enjoyment of the
Flair Services; (vii) use software or automated agents or scripts to
produce multiple accounts on the Flair Services, or to generate
automated searches, requests, or queries to (or to strip, scrape, or
mine data from) the Flair Services; or (viii) use the Flair Services
for any illegal, unauthorized, unintended, unsafe, hazardous,
fraudulent, deceptive or unlawful purposes (including, without
limitation, in violation of any data, privacy or export control laws),
or in any manner inconsistent with these Terms.
6.1. Third-Party Links. The Flair Services may contain links to third-party websites and services (collectively, “Third-Party Links”). Such Third-Party Links are not under the control of Flair, and Flair is not responsible for any Third-Party Links. Flair provides access to these Third-Party Links only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. You use all Third-Party Links at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links.
7. 1. Warranty Disclaimers. Neither we, our service providers, nor any third-party beneficiary makes ANY WARRANTIES, EXPRESS OR IMPLIED, about the Flair Services (including the content or other information delivered to you as part of the Flair Services). In addition, we do not promise uninterrupted or problem-free service and do not promise that the data or information provided to you will be error free. Use of the Flair Services is at your own sole risk. THE FLAIR SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. NEITHER WE, NOR ANY OF OUR SUPPLIERS, MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, ABOUT THE FLAIR SERVICES OR ABOUT ANY DATA OR INFORMATION PROVIDED BY US. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT FLAIR SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE FLAIR SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8.1. Indemnification. You agree to indemnify and hold Flair (and its
officers, employees, and agents) harmless, including costs and
attorneys’ fees, from any claim or demand made by any third party due
to or in any way arising out of (a) your use of the Flair Services,
(b) your violation of these Terms, (c) your violation of applicable
laws or regulations or (d) your Materials. Flair reserves the right,
at your expense, to assume the exclusive defense and control of any
matter for which you are required to indemnify us, and you agree to
cooperate with our defense of these claims. You agree not to settle
any matter without the prior written consent of Flair. We will use
reasonable efforts to notify you of any such claim, action or
proceeding upon becoming aware of it.
8.2. Release. You hereby release and forever discharge Flair (and our
officers, employees, agents, successors, and assigns) from, and hereby
waive and relinquish, each and every past, present and future dispute,
claim, controversy, demand, right, obligation, liability, action and
cause of action of every kind and nature that has arisen or arises
directly or indirectly out of, or that relates directly or indirectly
to, the Flair Services (including any interactions with, or act or
omission of, other Service users or any Third-Party Links). IF YOU ARE
A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION
1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9.1. Waiver of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, IN NO EVENT SHALL FLAIR (OR ITS SUPPLIERS) BE LIABLE TO YOU OR
ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT
OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO
THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE FLAIR SERVICES,
EVEN IF FLAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ACCESS TO, AND USE OF, THE FLAIR SERVICES IS AT YOUR OWN DISCRETION
AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR
DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
9.2. Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR
LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS
AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE
ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS PAID BY YOU IN
THE 12-MONTHS PRIOR THE EVENT GIVING RISE TO THE CAUSE OF ACTION. THE
EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU
AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING
FROM OR RELATING TO THIS AGREEMENT.
9.3. Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10.1. Term of Agreement. Subject to this Section, these Terms will
remain in full force and effect while you use the Flair Services.
10.2. Suspension, Termination and the Effect of Termination. You may
terminate your Account at any time through the Flair Services. We may
suspend or terminate your Account or your rights to use the Flair
Services at any time and for any reason at our sole discretion,
including for any use of the Flair Services in violation of these
Terms. In the event we suspend access to your Account, we will use
commercially reasonable efforts to notify you of the reason(s) for
such suspension as reasonably practicable prior to any suspension, but
in no event less than seventy-two (72) hours after the start of any
suspension. Upon termination of your rights under these Terms for any
reason, your Account, and right to access and use the Flair Services
will end immediately. You understand that any termination of your
Account may involve deletion of your Materials associated with your
Account. Flair will not have any liability whatsoever to you for any
suspension or termination of your rights under these Terms, including
for termination of your Account or deletion of your Materials. Even
after your rights under these Terms are terminated, the following
provisions of these Terms will remain in effect: Sections 1.2, Section
2, and Sections 4 through 13.
11. Proprietary Information. The Flair Service, the content and information therein, and all improvements, additions, derivatives, and other modifications thereto, and any information pertaining to the foregoing, are the exclusive property of Flair and/or its licensors and shall be considered and treated by you as the proprietary information of Flair (the “Flair Proprietary Information”). You acknowledge and agree that Flair is the owner of Flair Proprietary Information, and you agree that you have no right, title, or interest in any of Flair Proprietary Information except the right to use the Flair Services in accordance with and subject to this Agreement. You agree not to, directly or indirectly, disclose, sell, or otherwise transfer or exploit Flair Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use Flair Proprietary Information, or any portion thereof, without the prior written consent of Flair, which may be withheld in Flair’s sole discretion. You further agree not to challenge or assist with or participate in any challenge, directly or indirectly, of Flair’s ownership of Flair Proprietary Information or any right, title, or interest therein or any portion thereof.
12.1. Governing Law. This Agreement will be governed and interpreted
in accordance with the laws of the State of Florida, USA without
reference to conflicts of laws principles.
12.2. Dispute Resolution. Please read this Arbitration Agreement
carefully. It is part of your contract with Flair and affects your
rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A
CLASS ACTION WAIVER. Arbitration is an alternative to litigation where
a neutral person (the arbitrator) hears and decides the parties’
dispute. Arbitration proceedings are designed to provide parties with
a fair hearing in a manner that is faster and less formal than court
proceedings. The following procedures apply to all arbitration
proceedings involving you and us.
12.3. Applicability of Arbitration Agreement. All claims and disputes
(excluding claims for injunctive or other equitable relief as set
forth below) in connection with the Terms or the use of any product or
service provided by Flair that cannot be resolved informally or in
small claims court shall be resolved by binding arbitration on an
individual basis under the terms of this Arbitration Agreement. Unless
otherwise agreed to, all arbitration proceedings shall be held in
English. This Arbitration Agreement applies to you and Flair, and to
any subsidiaries, affiliates, agents, employees, predecessors in
interest, successors, and assigns, as well as all authorized or
unauthorized users or beneficiaries of services or goods provided
under the Terms.
12.4. Notice Requirement and Informal Dispute Resolution. Before
either party may seek arbitration, the party must first send to the
other party a written Notice of Dispute (“Notice”) describing the
nature and basis of the claim or dispute, and the requested relief. A
Notice to Flair should be sent to: Flair Technologies, Inc., 100 SE
2nd St. STE 2000 Miami, FL 33131 or such other location as Flair may
direct. After the Notice is received, you and Flair may attempt to
resolve the claim or dispute informally. If you and Flair do not
resolve the claim or dispute within thirty (30) days after the Notice
is received, either party may begin an arbitration proceeding. The
amount of any settlement offer made by any party may not be disclosed
to the arbitrator until after the arbitrator has determined the amount
of the award, if any, to which either party is entitled.
12.5. Rules for Arbitration. Any dispute, claim or controversy arising
out of or relating to these Terms or the breach, termination,
enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this agreement to
arbitrate, shall be determined by arbitration before one arbitrator in
Miami, Florida, unless the parties agree to a different location. The
arbitration shall be administered pursuant to JAMS's Streamlined
Arbitration Rules and Procedures (“JAMS Rules”). The arbitrator shall
have exclusive authority to resolve any arbitrability issues including
any dispute over these Terms or this arbitration provision’s scope,
application, meaning, and enforceability. The arbitrator shall be
empowered to grant whatever relief would be available in court. Any
award of the arbitrator(s) shall be final and binding and may be
entered as a judgment in any court having jurisdiction. This clause
shall not preclude parties from seeking provisional remedies in aid of
arbitration from a court of appropriate jurisdiction. The one
exception to the exclusivity of arbitration is that either party has
the right to bring an individual claim against the other in a small
claims court of competent jurisdiction, or, if filed in arbitration,
the responding party may request that the dispute proceed in small
claims court instead if the claim is within the jurisdiction of the
small claims court. If the request to proceed in small claims court is
made before an arbitrator has been appointed, any open arbitration
between the parties shall be administratively closed. If an arbitrator
has been appointed, the arbitrator shall determine whether the dispute
should remain in arbitration or instead be decided in small claims
court. Arbitration shall be conducted by written submissions only,
unless either you or Flair invoke the right to an oral hearing before
the arbitrator.
12.6. Time Limits. If you or Flair pursue arbitration, the arbitration
action must be initiated and/or demanded within the statute of
limitations (i.e., the legal deadline for filing a claim) and within
any deadline imposed under the JAMS Rules for the pertinent claim.
12.7. Waiver of Jury Trial. You and Flair expressly and knowingly
WAIVE THE RIGHT TO TRIAL BY JURY. This means that if for any reason
the Arbitration Agreement contained in Section 12 is not enforced or
is found inapplicable, or either of us file the action in small claims
court, our claims against each other will be resolved by a judge
rather than a jury.
12.8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES
WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR
LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS
OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED
JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
12.9. Confidentiality. All aspects of the arbitration proceeding,
including but not limited to the award of the arbitrator and
compliance therewith, shall be strictly confidential. The parties
agree to maintain confidentiality unless otherwise required by law.
This paragraph shall not prevent a party from submitting to a court of
law any information necessary to enforce this Agreement, to enforce an
arbitration award, or to seek injunctive or equitable relief.
13.1. Export. The Flair Service may be subject to U.S. export control
laws and may be subject to export or import regulations in other
countries. You agree not to export, reexport, or transfer, directly or
indirectly, any U.S. technical data acquired from Flair, or any
products utilizing such data, in violation of the United States export
laws or regulations.
13.2. Disclosures. Flair is located at the address in Section 12.3. If
you are a California resident, you may report complaints to the
Complaint Assistance Unit of the Division of Consumer Product of the
California Department of Consumer Affairs by contacting them in
writing at 400 R Street, Sacramento, CA 95814, or by telephone at
(800) 952-5210.
13.3. Electronic Communications. The communications between you and
Flair use electronic means, whether you use the Flair Services or send
us emails, or whether Flair posts notices on the Flair Services or
communicates with you via email. For contractual purposes, you (a)
consent to receive communications from Flair in an electronic form;
and (b) agree that all terms and conditions, agreements, notices,
disclosures, and other communications that Flair provides to you
electronically satisfy any legal requirement that such communications
be in a hardcopy writing. The foregoing does not affect your
non-waivable rights.
13.4. Publicity. The terms and conditions of this Agreement are
confidential, and you agree that you will not disclose such terms and
conditions or issue any press releases or other public statements
relating to the relationship created by this Agreement without Flair’s
prior written approval. Flair shall be permitted to list you as a
customer in Flair’s marketing materials.
13.5. Force Majeure. Neither party will be liable for failure or delay
in performing its obligations because of causes beyond its reasonable
control, including without limitation acts of God, terrorism, war,
riots, fire, earthquake, flood or degradation or failure of
third-party networks or communications infrastructure.
13.6. Entire Terms. These Terms constitute the entire agreement
between you and us regarding the use of the Flair Services. Our
failure to exercise or enforce any right or provision of these Terms
shall not operate as a waiver of such right or provision. The section
titles in these Terms are for convenience only and have no legal or
contractual effect. The word “including” means “including without
limitation”. If any provision of these Terms is, for any reason, held
to be invalid or unenforceable, the other provisions of these Terms
will be unimpaired, and the invalid or unenforceable provision will be
deemed modified so that it is valid and enforceable to the maximum
extent permitted by law. Your relationship to Flair is that of an
independent contractor, and neither party is an agent or partner of
the other. These Terms, and your rights and obligations herein, may
not be assigned, subcontracted, delegated, or otherwise transferred by
you without Flair’s prior written consent, and any attempted
assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void. Flair may freely assign these Terms.
The terms and conditions set forth in these Terms shall be binding
upon assignees.
13.7. Copyright/Trademark Information. Copyright © 2022 Flair
Technologies, Inc. All rights reserved. All trademarks, logos and
service marks (“Marks”) displayed on the Flair Services are our
property or the property of other third parties. You are not permitted
to use these Marks without our prior written consent or the consent of
such third party which may own the Marks.
13.8. Contact Information:
hello@getflair.io
© 2022, All Rights Reserved