Terms of service
FLYING COLORS TERMS & CONDITIONS
(Effective February 2, 2021)
Welcome to Flying Colors! It’s important to understand the terms and conditions for any site or app you access, and we’re glad you’ve decided to review ours.
By accessing any of our Services, as defined below, you fully acknowledge and unconditionally agree to all of the following terms and conditions. Please read our Terms & Conditions carefully, and don’t hesitate to let us know if you have any questions.
Please note that these Terms & Conditions contain a mandatory binding arbitration clause and class action waiver in Sections 11.b and 11.c, respectively. These provisions require that you waive your right to seek relief in a court of law and your right to have any disputes decided by a judge or a jury - and, instead, engage in binding arbitration on an individual basis.
1. Definitions. There are a few words and phrases that you’ll see repeatedly throughout our Terms & Conditions, including in the preceding introduction. Here’s an explanation of those terms:
a. Quantum Cognition LLC (also "Flying Colors", “Flying Colors,” "we", "us", "Company" and "our") is a Delaware limited liability company that curates a collection of foodstuffs and products for bird enthusiasts.
b. For the purposes of these Terms & Conditions, Flying Colors’ "Affiliates" include our executives, employees, officers, contractors and service providers, consultants, attorneys, advisers, investors, board members, directors, partners, joint ventures, parents, subsidiaries, successors, assigns, and any controlling and/or acquiring individual and/or entity and his/her/its affiliates.
c. "You" (also "your" and "user") refers to you, the individual, as well as any entity or other individual on whose behalf you’re acting.
d. "Services" refer to any and all of Flying Colors’ websites, social media accounts, software applications, in-person events, emails, text and SMS messages, and feeds (e.g. Real Simple Syndication feeds, Atom feed), and any of the media content (e.g. articles, catalogs, photos, product descriptions) available through those Services, as well as any and all services pertaining to the sale of bird food, bird houses, and other bird-related product by Flying Colors. Flying Colors’ “Digital Services” refer specifically to any and all of Flying Colors’ technological offerings, including without limitation its websites, social media accounts, software applications, emails, text and SMS messages, and feeds, and any of the media content (e.g. articles, catalogs, photos, product descriptions) available through those Digital Services.
e. “Product” or “Products” refers to any and all products offered for sale by Flying Colors and our Affiliates, including without limitation via www.flyingcolors.com.
f. “User Content” refers to any text, photos, images, video, audio, and multimedia you create, modify, post, provide, upload, send, and/or share in connection with our Services. This includes but is not limited to photos or videos of one or more Products that you share with Flying Colors. User Content specifically does not include any user passwords, contact information, personally-identifying information, or financially sensitive information – those items are subject to their own rules, as explained in our Privacy Policy (https://flyingcolors.co/policies/privacy-policy) – unless such information appears (against our recommendation) in a public-facing, photo, image, item of text, audio file, video, or multimedia item.
2. Who Can Use our Services?
a. Eligibility. By accessing our Services – including, without limitation, purchasing Product(s) from Flying Colors and/or our Affiliates – you represent that you are of sound mind and body to agree to these Terms & Conditions and in possession of the full rights and/or authorization to: (a) agree to these Terms & Conditions, (b) agree to and pay for any purchase made by you, whether for your own benefit or the benefit of a third party, (c) authorize the use of your User Content, as described in this Agreement, and (d) submit any contact information, financial information, and other personal and sensitive information provided in connection with our Services, whether for your own benefit or the benefit of a third party. You must be older than thirteen (13) years of age to make use of Flying Colors’ Digital Services; however, you must be eighteen (18) or older to engage in a transaction with Flying Colors for the purchase of Products.
b. Non-Eligibility. We reserve the right to terminate your use of, and access to, our Services – and cancel any purchase hereunder – for any violation of these Terms & Conditions. Furthermore, you may not use our Services if you are:
i. Currently restricted or prohibited from using our Services;
ii. A past, present, or imminent competitor of Flying Colors and/or closely connected to one or more of our past, present, or imminent competitors;
iii. Acting on behalf of another person or entity without that person or entity’s permission;
iv. Under a legal obligation that restricts and/or precludes your use of our Services; and/or
v. Otherwise unwilling to fully agree to, and follow all of these Terms & Conditions.
c. No Guarantees re: Eligibility. While we make every effort to keep a tight-knit community based on strict eligibility criteria, we make no warranty or representation that every user satisfies our eligibility criteria; there may be ineligible individuals who still gain access to and/or use our Services.
d. Immediate Termination. You need to immediately close your browser window, and cease from all further use of our Services if you are or become ineligible to use these Services. You further agree to email legal@flyingcolors.co with the subject “End Use” with details about your reason for ceasing all further use.
3. Basic Standards of Conduct
a. Summary of Standards. Flying Colors’ Basic Standards of Conduct should be easy to follow. Here are 4 Simple Guidelines that will help:
i. Treat Flying Colors, our Affiliates, our service providers, and our community members kindly and respectfully.
ii. Keep User Content clean, decent, and non-disparaging.
iii. Be truthful with the information you provide. Present yourself honestly and up-to-date.
iv. Don’t try to breach our security, disrupt our technology, or misappropriate our intellectual property.
b. Improper Use. Your use of our Services (including, but not limited to, your acts and/or omissions in connection with the purchase of Product(s)) shall not directly or indirectly constitute, involve, attempt, aid, support, incite, encourage, advise, bring about, and/or facilitate any of the following:
i. A violation of a law;
ii. A violation of a rule, regulation, and/or standard of conduct;
iii. Infringement of the personal and/or property rights of Flying Colors and/or any third party (including, but not limited to, infringement of intellectual property rights, moral rights, privacy rights, rights to publicity, and rights concerning privileged, proprietary, and confidential information);
iv. A breach of an agreement, legal obligation, or responsibility;
v. Discovery of another user’s information beyond that which is legitimately intended to be made publicly available;
vi. An implication or indication of involvement with, or endorsement by Flying Colors when Flying Colors has not specifically granted permission to make such an implication or indication;
vii. Interference with an existing business relationship and/or contract
viii. An unlawful, unfair, and/or deceptive business act, practice, or scheme;
ix. Support for, or advancement of a potential or actual Flying Colors competitor;
x. Threats, harassment, intimidation, abusive conduct, and/or bullying;
xi. Extortion, fraud, and/or identity theft;
xii. Improper disclosure of privileged, private, confidential, and/or proprietary information;
xiii. Obscenity, vulgarity, and/or pornography;
xiv. Impersonation, misrepresentation, and/or another reckless or knowing provision of false, incomplete, inaccurate, or outdated information (whether by text, image, photo, audio, video, or otherwise);
xv. Libel, slander, defamation, or other attack on character or reputation;
xvi. Hate speech, prejudice, and/or unlawful discrimination;
xvii. Tortious conduct not previously describe; or
xviii. Any other violation of these Terms & Conditions.
c. Everyone Should Feel Welcome. You agree that you shall not attempt to, or actually interfere with another user’s legitimate, good-faith use, and/or enjoyment of our Services.
d. Malicious Conduct & Content. You shall not use our Services, attempt to use our Services, or seek to emulate Flying Colors, to engage in spamming, phishing, harvesting, unauthorized advertising (including, but not limited to, bulk emailing, pyramid schemes, commission-based opportunities, contests, offers), or the circulation of viruses or other malicious programs and/or code; this includes Trojan horses, spyware, worms, Easter eggs, time bombs, and any other harmful and/or invasive files, programs, or code.
e. Respect the Integrity of Our Technology & Operations.
i. Proper Working Order. You agree that you shall not attempt to disrupt or actually disrupt, manipulate, or otherwise interfere with the proper working order of any servers, networks, systems, and other technologies belonging to Flying Colors, our Affiliates, and/or any of our third party providers. Under no circumstances shall you attempt to, or actually disrupt, alter, or modify any aspect of our Services or the services of our Affiliates and/or third party providers, including, but not limited to, disruption of our websites, inventory management system, social accounts, and online storefront technology.
ii. Public Interface Only. You shall utilize only those interfaces publicly provided by Flying Colors, its Affiliates, and its third party providers, when interacting with our Digital Services. You shall only access that which Flying Colors, its Affiliates, and its third party providers deliberately make publicly available, within the bound of reasonably intended use. You shall not attempt to, or actually access any information, data, code, and/or other material belonging to Flying Colors, it Affiliates, and/or its third party providers that is not intended for public access and/or consumption– through hacking, password mining, identity theft, and/or another breach of authentication and/or security. Likewise, you are not allowed to test or probe the security or vulnerability of our Digital Services, networks, servers, or other technologies.
iii. Excessive Load. You shall not impose any excessive load or unreasonable demand – per our determination – on the infrastructure, systems, servers, or other technology and operations of Flying Colors, its Affiliates, and/or its third party providers, including but not limited to by use of our Services.
iv. Reverse Engineering. You shall not attempt to or actually reverse engineer, decompile, duplicate, mimic, render generically, or otherwise derive the code underlying any aspect, feature, function, or detail concerning or relating to our Services, except to the extent that such a restriction is expressly forbidden by law. This clause includes, but is not limited to, reverse engineering, duplicating, mimicking, and/or rebranding any Products offered for sale, as well as any technology relating to our Digital Services.
f. Flying Colors’ Data, Information, IP Materials, Code & Content. You agree that you are strictly forbidden from the following with respect to our data, information, intellectual property, materials, code, and content (including, without limitation, User Content furnished by other users):
i. Displaying, publishing, transmitting, licensing, sublicensing, distributing, exhibiting, and/or making commercial use of these items beyond our prior express written consent and without the express written consent of the Content’s rightful owner;
ii. Downloading, extraction, copying, indexing, and/or collection of these items (including, without limitation, use of a robot, spider, data miner, crawler, scraper or similar tool);
iii. Duplication, rebranding, and/or derived usage of these items;
iv. Deleting or modifying the substance and/or appearance of these items;
v. Displaying these items out of context, obscuring them, including them alongside objectionable content, or otherwise failing to present them as fully intended; and
vi. Other manual and/or automated means of improper access or retrieval.
g. Public Search Engine Exception: Operators of public search engines are hereby granted permission to use spiders for the sole and limited purpose of developing a publicly available searchable index of the content and information appearing in publicly-facing areas of our online properties – and are granted such permission only to the extent necessary to create such an index. Public search engine operators are not granted permission to create caches or archives of the indexed content. Flying Colors reserves the right to limit, suspend, or revoke this permission at any time, for any reason, without notice, at its sole discretion.
h. Limit: One Account per Person. Flying Colors reserves the right to require that you register to use part or all of our Services. You are allowed to create a single account for yourself, as a natural person. You may create an additional account for each entity/person who authorizes you to agree to these Terms & Conditions with prior express written authorization. Flying Colors reserves the right to reject or require a change as to your registration information (e.g. username, password, email account), for any reason, at its sole discretion.
i. Responsibility for Your Account, User Content & Information. Your account, User Content, passwords, personal information, and financially-sensitive information are your responsibility. You and you alone are responsible for all actions and omissions arising out of, and/or relating to your account, User Content, and/or use of our Services. Any User Content or information you provide to us is at your own risk of liability, harm, loss, damages, expenses, fees, costs, and/or fines – Flying Colors shall not be responsible or liable for your User Content.
j. Unsavory Conduct. There is always a chance that, in connection with or as a result of our Services – including, but not limited to, during the course of receiving or returning Products you purchased from Flying Colors – you may encounter people, behavior, interactions, content, and/or other material that you consider inaccurate, objectionable, inappropriate, hostile, indecent, and/or worse. Therefore, you acknowledge and agree that you use our Services at your own risk of encountering such people, behavior, interactions, content, and/or other material; you acknowledge and agree that you shall not, under any circumstances, hold Flying Colors or its Affiliates responsible or liable in connection with such persons, behaviors, interactions, content, and/or other material.
k. Notice to Parents. You are hereby notified, pursuant to 47 U.S.C. Section 230(d), that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors; for information about current providers, visit: http://kids.getnetwise.org and http://onguardonline.gov. To be clear, Flying Colors does not specifically endorse any site or tool with respect to parental control protection.
l. Non-Audit of Content. Flying Colors does not guarantee that it will audit, analyze, or review User Content or third party content before it goes live. Neither Flying Colors, nor its Affiliates is in any way responsible for what is published as User Content or third party content in connection with our Services, and we are under no obligation to edit or control User Content or third party content. While we like to make efforts to help our users, we make no warranties or representations regarding responding to User Content issues, third party content issues, or other issues arising out of, or relating to our Services; it is possible that your issue may go unaddressed. That said, we reserve the right to delete any User Content or any other content at any time for any reason without notice, cause, or consent.
m. Linking & Deep Linking to Flying Colors. You agree that you will not link to our Digital Services (including but not limited to our website) in an effort to disrupt, obstruct, harass, defame, unfairly profit from, or otherwise harm us. Furthermore, you agree that deep linking to our Digital Services is strictly prohibited without our prior express written consent.
n. Report Suspicious or Improper Conduct. You agree to immediately notify Flying Colors of any unauthorized use of your account, any breach of security, or any other suspicious or improper usage of our Services (including, but not limited to, reporting inappropriate conduct at any in-person event). Likewise, you agree to immediately notify Flying Colors with a detailed explanation if you believe you or any other user has committed or will commit a breach of these Terms & Conditions. You can make such a report by emailing legal@flyingcolors.co with the subject line “Improper Conduct” and a detailed account of the issue.
o. Framing & Hidden Technology. You may not utilize framing or mirroring techniques to enclose any Flying Colors trademark, logo, image, text, layout, format, or other proprietary information or intellectual property, without our prior express written consent. You may not utilize any "hidden text" (e.g. meta tags) that references Flying Colors’ proprietary information or intellectual property without our prior express written consent. You may not remove any trademark notice, copyright notice, or other notice of proprietary rights appearing in connection with our Services.
p. Editing & Deleting Your User Content. With respect to the User Content you create, distribute, or otherwise submit or disseminate in connection with our Services – such as photos, videos, messages, comments, and posts – you cannot revise or delete that which has been submitted to Flying Colors.
q. User Content Is Public. Your User Content is considered to be public and non-confidential in its entirety – it may be discovered, and/or attributed to you, and used by Flying Colors and its Affiliates as described in these Terms and Conditions.
4. Your Rights
a. License to Use Services. Provided that you fully agree to these Terms & Conditions – and are capable of conducting yourself in accordance with them at all times– you will be granted a limited, non-exclusive, non-sublicensable, non-transferable, non-delegable, non-assignable, fully revocable license to access and make use of our Digital Services, strictly as intended, in accordance with our terms and conditions (e.g. these Terms & Conditions). Flying Colors reserves the right to limit, suspend, or revoke this license at any time, for any reason, without notification or warning.
b. Single Copy. You are allowed to make a single copy of the content available through our Digital Services for use in learning about, evaluating, and/or utilizing Flying Colors’ Services, provided that you agree that any such copy will be accompanied by a clear, complete, unmodified, and unobscured copy of these Terms & Conditions – and that these Terms & Conditions shall control use of said copy.
5. Our Rights
a. Terms, Services & Access. Flying Colors reserves the right to do any and all of the following at any time, effective immediately, without liability, cause, notice, or preservation obligation:
i. Add to, remove, or modify any and/or all of our terms and conditions (including, but not limited to, these Terms & Conditions and our Privacy Policy) – in which case, your subsequent access and/or use of our Digital Services constitutes acceptance of the amended term(s);
ii. Suspend, discontinue, remove, interrupt, restrict, update, improve, or otherwise modify (a) our Services, (b) features, functions, details, and/or portions of our Services, and (c) material, data, information, code, and/or content arising out of, or relating to our Services – including, without limitation, the right to freely modify, revise, and limit which Products, if any, are offered, or no longer offered, as well as each Product’s price, description, specifications, availability, available quantity, lead time, and accompanying photos, descriptions, and images; and
iii. Refuse, suspend, terminate, ban, restrict, or otherwise modify your, or any other person’s, access to and/or ability to use: (a) our Services, (b) features, functions, details, or portions of our Services; and/or (c) material, data, code, information, and/or content arising out of, or relating to our Services – including, without limitation, cancelling any pending purchases, refusing to sell Products, and/or outright banning from all Services.
b. Rejection of Modifications. If you do not wish to be bound by modifications relating to our terms, Services, or access rights, you must stop using our Services immediately and cease from all further usage of our Services. You further agree to email legal@flyingcolors.co with the subject “End Use” and details about your reason for ceasing all further use of our Services.
c. No Obligation to Act/Refrain. Flying Colors is under no obligation – and shall face no penalty, liability, damage, claim, suit, or loss – to take action or refrain from taking action with respect to maintaining, updating, modifying, improving, and/or providing: (a) our Services; (b) features, functions, details, or portions of our Services; (c) terms and /or conditions relating to our Services; and/or (d) material, data, information, and/or content arising out of, or relating to, our Services.
d. License to Flying Colors. Subject to the conditions set forth in our Privacy Policy (https://flyingcolors.co/policies/privacy-policy), you hereby grant a perpetual, irrevocable, non-exclusive, royalty-free, fully sub-licensable, worldwide license to exercise any and all rights you may have as to any content (including without limitation your User Content), data and information arising out of and/or relating to your use of our Services, including, without limitation, data and information concerning the browsing of our website, the purchase of Products, the receipt of Products, and your usage of Products. Likewise, you agree that Flying Colors may, at our sole discretion: copy, reproduce, adapt, translate, sell, distribute, syndicate, publish, transfer, communicate, modify, exhibit, advertise, market, create derivative works from, display, make commercial use of (including currently known and future, currently unknown commercial uses), and/or otherwise use your content (including without limitation your User Content), data and information arising out of and/or relating to your use of our Services throughout the world in any media in any manner, fashion and/or context we wish. You further agree that you waive any moral rights – including, but not limited to, the rights of attribution – in connection with any content and any data and information arising out of and/or relating to your use of our Services. Furthermore, you represent that you have full authority and right to grant these licenses and waive these rights pursuant to these Terms & Conditions.
e. Handling Your Information & User Content. You agree that Flying Colors may store, save, retain, delete, or destroy any and all content, information and/or data it collects – including but not limited to your User Content and any data concerning your personally-identifying and financially sensitive information – as it deems fit, with or without notice or cause, effective immediately. Specific details about how we use your information – including your personally-identifying and financially sensitive information – can be found in our Privacy Policy (https://flyingcolors.co/policies/privacy-policy).
f. All Rights Reserved. Excepting your User Content, all code, content, materials and information that are included in our Services – in various formats, including, but not limited to, images, illustrations, photographs, posters and banners, messages, videos, audio, software, data, and text – is the property of Flying Colors or one or more third-parties (“Flying Colors Content”). Flying Colors Content is protected by the copyright laws, trademark laws, patent laws, and other intellectual property laws of the United States and other countries – and you acknowledge and agree all copyrights, trademark rights, and other proprietary rights and interests arising out of, and/or relating to, the Flying Colors Content are owned by us or our licensors to the fullest extent permitted under applicable law. Except as expressly authorized in these terms and conditions, or with our prior express written consent, you may not use, download, upload, copy, print, enter into a database, exhibit, display, perform, sell, lease, rent reproduce, republish, license or sublicense, post, create derivative works from, transmit, distribute, share, or otherwise exploit or make commercial use from Flying Colors Content in whole or in part. You further acknowledge and agree that all rights in the Flying Colors name, trade names, logos, service marks, trade dress, slogans, and designs – regardless of the size of the print or the presence of a legal designation (e.g., ™, ® or ©) – are the exclusive property of Flying Colors and/or its licensors, and are protected by United States and international law from reproduction, imitation, confusing and/or misleading usage, dilution, and/or any other unfair usages. Nothing expressly stated or implied by these Terms & Conditions – or by our Services in general – shall give you any right, license, or other form of permission to use the Flying Colors name, or any trade names, logos, service marks, trade dress, slogans, and designs that belong to Flying Colors and/or our licensors; your use or misuse of intellectual property belonging to Flying Colors and/or its licensors is hereby expressly prohibited. If you wish to obtain permission to use Flying Colors’ trademark or other Flying Colors Content, or if you have any questions about these terms, please direct your inquiries to us at legal@flyingcolors.co. Furthermore, you acknowledge that the Products we sell may be protected by patent laws and other intellectual property laws of the United States and other countries; nothing expressly stated or implied by these Terms & Conditions – or by our Services in general – shall give you any right, license, or other form of permission to use the patents connected to the Products we sell; your use or misuse of intellectual property belonging to Flying Colors, its Affiliates, its licensors, its suppliers/manufacturers, and any other related parties is hereby expressly prohibited, unless otherwise authorized.
g. Messages & Notifications to Our Community. For the purpose of service messages and notices intended for general consumption, we reserve the right to contact you through any means we choose, including by mail, telephone, email, social media, or website banner; you agree that any means of contact we choose will suffice for the purpose of providing adequate, timely legal notice.
h. Catch-All. To the fullest extent permitted by law, Flying Colors reserves any and all rights and interests relating to our Company, our Affiliates, and our property which were not expressly enumerated in these Terms & Conditions, including, but not limited to, rights relating to ownership, title, copyright, patent, proprietary rights, and trademark.
6. Privacy Policy. Flying Colors values your privacy rights. We strongly recommend that you carefully review our Privacy Policy here: https://flyingcolors.co/policies/privacy-policy. This Privacy Policy governs how we collect and use your information. Our Privacy Policy is incorporated by reference into these Terms & Conditions; by agreeing to our Terms & Conditions, you acknowledge and fully agree to be bound by the terms and conditions set forth in our Privacy Policy.
7. Termination.
a. Termination by Flying Colors. Flying Colors reserves the right – whenever we choose, effective immediately, without liability, cause, notice, or warning – to suspend, terminate, ban, interrupt, restrict, or otherwise modify your (or any other User’s) access to and/or use of our Services, or any functions, details, features or portions of our Services. This includes, but is not limited to, restricting the scope of your use or access, requiring and charging additional costs, deleting your User Content, and/or outright banning you for an indefinite period of time.
b. Termination by You. If you wish to terminate your account and/or no longer utilize Flying Colors’ Services, you may do so at any time; simply send an email to legal@flyingcolors.co from the email address you use in connection with Flying Colors (or in lieu of such an email address, your primary email address) and include the subject line “End Use”, along with a few details about your reason for ceasing all further use.
c. Continuing Usage. You acknowledge and agree that termination has no impact on our ability to maintain and use the information and content you communicated to Flying Colors.
d. Clauses Surviving Termination. All terms and conditions in these Terms & Conditions which are reasonably intended to survive termination shall so survive, regardless of which party terminates. This includes, without limitation, the terms and conditions set forth in the following Sections and Paragraphs: Section 1 (“Definitions”); Section 3.c (“Everyone Should Feel Welcome); Section 3.d (“Malicious Conduct & Content”); Section 3.e (“Respect the Integrity of Our Technology & Operations”); Section 3.f (“Flying Colors’ Data, Information, IP Materials, Code & Content”); Section 3.i (“Responsibility for Your Account, User Content & Information”); Section 3.j (“Unsavory Conduct”); Section 3.l (“Non-Audit of User Content”); Section 3.m (“Linking & Deep-Linking to Flying Colors”); Section 3.n (“Report Suspicious or Improper Conduct”); Section 3.o (“Framing & Hidden Technology”); Section 3.p (“Editing & Deleting Your User Content”); Section 3.q (“Your User Content Is Public”); Section 5 (“Our Rights”), except for Section 5.b (“Rejection of Modifications”); Section 6 (“Statement on Privacy”); Section 7.c (“Continuing Usage”); Section 7.d; Section 8.e (“Risk of Loss & Passage of Title”); Section 8.f (“Errors in Processing Your Purchase”); Section 9 (“Promotions & Discounts”); Section 10 (“Disclaimers, Limitations & Indemnification”); Section 11 (“Choice of Law, Jurisdiction, Mandatory Arbitration & Class Action Waiver”); and Section 12 (“Miscellaneous But Important”). Furthermore, Flying Colors’ Privacy Policy, which is hereby incorporated, also survives termination. Each surviving term and condition shall survive until its purpose is fulfilled and/or no longer applicable – or, otherwise, indefinitely. To the extent any of the foregoing Sections, Paragraphs, and/or Policies contain one or more provisions which are not applicable as to this Section 7.d (“Survival”), the parties acknowledge and agree that the inapplicable provision(s) shall simply be severed from interpretation, and that the rest of the provisions shall survive as described in this Section.
8. Purchasing a Product from Flying Colors.
a. Paying for Your Purchase. You agree to pay Flying Colors all charges associated with the Product(s) being purchased by you and authorize Flying Colors to fully and immediately charge your designated payment provider for all amounts indicated at the time of payment, including, without limitation, all shipping, handling, and delivery charges (exclusive of any fees or penalties). You acknowledge that it is necessary for you to provide your contact information, financial information, and other personal and sensitive information to effectuate your purchase, and you agree that all information you provide in connection Flying Colors and our Affiliates will be truthful, accurate, up-to-date, and furnished with full authorization. Furthermore, you acknowledge and agree that Flying Colors may provide your personal, financial, and contact information to one or more third parties in order to effectuate your purchase – including, but not limited to, financial services providers and shipping/delivery carriers.
b. Taxes. You acknowledge and agree that you – and not Flying Colors – are responsible for any and all applicable local, county, state, federal, and/or international taxes associated with your purchase of a Product from Flying Colors and/or our Affiliates, including, but not limited to, sales, excise, import, export, use, personal property, value-added, an electronic/e-commerce taxes.
c. Shipping, Handling, & Delivery. Your purchase will typically include shipping, handling, and delivery costs and expenses for each Product. You agree to pay these costs and expenses, as specified (exclusive of penalties and delays) at the time of check-out. Flying Colors does not guarantee that we can arrange or confirm a delivery on or by your desired date, or within your desired timeframe; likewise, you acknowledge and agree that certain Product(s) may require longer lead times and/or encounter delays – and that Flying Colors does not guarantee delivery on your selected date. Flying Colors will provide you with an estimated delivery date and the latest date by which delivery will be made.
d. Damaged, Defective & Non-Conforming Purchase Orders. Notwithstanding any terms Flying Colors takes full responsibility for damaged, defective, and non-conforming orders.
e. Risk of Loss & Passage of Title. The risk of loss, damage, and destruction for any and all purchased Products passes to you upon acceptance of the goods at the time of delivery. Likewise, if you are purchasing one or more Product(s), you acknowledge and agree that the rights, title, and interest for the purchased Product(s) passes to you upon acceptance of the goods at the time of delivery.
f. Errors in Processing Your Purchase. Flying Colors reserves the right to correct any errors or mistakes that it makes during the course of charging you for your purchase, even if it has already requested or received payment; this includes, without limitation, mistakes as to the availability of a Product, as well as overcharges and undercharges on the pricing of a Product or shipping/delivery costs.
9. Promotions & Discounts. Flying Colors may offer promotions (including, but not limited to, coupons, credits, discounts, promo codes, raffles, contests, sweepstakes, and giveaways) in connection with its Services. You acknowledge and agree that Flying Colors reserves the right to set conditions and limitations on participation with respect to such promotions, beyond these Terms & Conditions, and that such conditions and limitations will govern in the event of any conflict with these Terms & Conditions. You agree to carefully review and, at all times, fully abide by any conditions and limitations relating to a promotion in which you wish to participate. Flying Colors reserves the right to modify or discontinue the conditions, limitations, and/or validity of any promotion at any time, for any reason, without prior notice, in its sole discretion, to the fullest extent permitted by law. You acknowledge and agree that, to the fullest extent of the law, Flying Colors reserves the right to refuse to honor any person’s participation in, or redemption of a promotion, including if Flying Colors believes said person has violated or will imminently violate applicable conditions or limitations.
10. Disclaimers, Limitations & Indemnification
CERTAIN JURISDICTIONS MAY LIMIT OR FORBID CERTAIN OF THE BELOW-LISTED WAIVERS AND/OR DISCLAIMERS. ACCORDINGLY, IT IS POSSIBLE THAT THE FOLLOWING MAY NOT APPLY TO YOU IN ITS ENTIRETY; HOWEVER, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, YOU HEREBY AGREE TO THE ALL OF THE FOLLOWING DISCLAIMERS AND WAIVERS, IN THEIR ENTIRETY:
a. Warranties Accompanying Your Products. Insofar as a manufacturer and/or supplier of a Product offers a warranty as to said Product, these Terms & Conditions are not intended to void, invalidate, or otherwise diminish the effect of that warranty except insofar as the warranty renders Flying Colors liable with respect to the Product. You acknowledge and agree that all matters relating to any manufacturer or supplier warranty run strictly between you and the manufacturer/supplier or its designee; neither Flying Colors nor its Affiliates holds no liability or responsibility with respect to any disputes, controversies, and/or claims involving any third-party warranty issues or related matters.
b. DISCLAIMERS. You acknowledge and fully agree to the following, to the fullest extent legally permitted:
i. EXCEPT AS EXPRESSLY STATED BY FLYING COLORS WITH RESPECT TO DEFECTIVE, DAMAGED, OR NON-CONFORMING ORDERS IN SETION 8.c, FLYING COLORS AND ITS AFFILIATES PROVIDE ALL SERVICES – AND ALL PRODUCTS SERVICES, INFORMATION, MATERIALS, DATA AND CONTENT THERETHROUGH AVAILABLE – ON AN "AS IS,'' “WITH ALL FAULTS”, AND "AS AVAILABLE" BASIS TO THE EXTENT ALLOWED BY LAW. TO THE EXTENT ALLOWED BY LAW, AND EXCEPT WITH RESPECT TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FLYING COLORS AND ITS AFFILIATES DISCLAIM ALL IMPLIED WARRANTIES THAT MAY ARISE IN CONNECTION WITH OUR SERVICES – AND ALL PRODUCTS, INFORMATION, MATERIALS, DATA AND CONTENT THERETHROUGH AVAILABLE – INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND INFRINGEMENT, AS WELL AS ANY OTHER IMPLIED WARRANTY THAT MAY ARISE FROM THE COURSE OF DEALING, USAGE, PERFORMANCE OR TRADE.
ii. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL COMPLY WITH ALL OBLIGATIONS IN CONNECTION WITH THE PURCHASE OF A PRODUCT, REGARDLESS OF ANY OTHER INTERVENING AND/OR EXTENUATING CIRCUMSTANCES.
iii. FLYING COLORS AND ITS AFFILIATES RESERVE THE RIGHTS TO FULLY ASSIGN AND DELEGATE THEIR RIGHTS AND OBLIGATIONS IN CONNECTION WITH THESE TERMS & CONDITIONS AND ANY SERVICES HEREUNDER. IF FLYING COLORS AND/OR ITS AFFILIATES ASSIGN RIGHTS IN CONNECTION WITH THESE TERMS & CONDITIONS, YOU WILL NOT BE ENTITLED TO ASSERT ANY CLAIMS, DEFENSES, SETOFFS, OR COUNTERCLAIMS AGAINST FLYING COLORS’S ASSIGNEE THAT SHALL NOT BE ASSERTED AGAINST FLYING COLORS.
iv. FLYING COLORS & ITS AFFILIATES DISCLAIM ANY DUTIES, RESPONSIBILITIES, LIABILITIES, AND OBLIGATIONS IN CONNECTION WITH ANY “FORWARD-LOOKING STATEMENT” WE MAKE.
v. NEITHER FLYING COLORS NOR ITS AFFILIATES MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY AND/OR RELATED RIGHTS AS THEY ARISE IN CONNECTION WITH OUR SERVICES.
vi. NEITHER FLYING COLORS NOR ITS AFFILIATES IN ANY MANNER WARRANTS THAT: OUR PRODUCTS AND/OR SERVICES FUNCTION OR WILL FUNCTION IN AN UNINTERRUPTED AND/OR ERROR-FREE MANNER; INFORMATION, MATERIALS, CONTENT, AND/OR DATA AVAILABLE THROUGH OUR DIGITAL SERVICES WILL BE AVAILABLE AND/OR PRESERVED; MALFUNCTIONS OR DEFECTS WITH OUR PRODUCTS AND SERVICES HAVE BEEN OR WILL BE CORRECTED; OUR DIGITAL SERVICES ARE AND WILL BE SECURE; OR OUR DIGITAL SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE, ARE AND WILL CONTINUE TO BE FREE OF VIRUSES OR OTHER HARMFUL AND/OR DESTRUCTIVE COMPONENTS. NEITHER FLYING COLORS NOR ITS AFFILIATES WARRANTS THAT ANY MESSAGE, EMAIL, OR ATTACHMENT WE SEND – OR ANYTHING ELSE WE MAKE AVAILABLE FOR DOWNLOAD OR ACCESS – IS FREE OF VIRUSES OR OTHER HARMFUL OR DESTRUCTIVE COMPONENTS.
vii. NEITHER FLYING COLORS NOR ITS AFFILIATES MAKES ANY PROMISES OR WARRANTIES REGARDING THE ACTS AND OMISSIONS OF ANY THIRD PARTY. THIS INCLUDES, WITHOUT LIMITATION, THE ACTS AND OMISSIONS OF ANY CARRIER FOR SHIPPING/DELIVERY AND/OR ITS PERSONNEL, AS WELL AS THE ACTS AND OMISSIONS OF ANY FINANCIAL SERVICES PROVIDERS WE USE TO FACILITATE OUR TRANSACTIONS.
viii. NEITHER FLYING COLORS NOR ITS AFFILIATES WARRANTS OR MAKES ANY REPRESENTATIONS REGARDING THE QUALITY, USE, OR EFFICACY OF OUR SERVICES – OR ANY PRODUCTS, INFORMATION, MATERIALS, DATA, AND CONTENT THERETHROUGH AVAILABLE. NEITHER FLYING COLORS NOR ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE PRODUCTS, INFORMATION, DATA, MATERIALS, AND CONTENT AVAILABLE THROUGH OUR SERVICES WILL BE ACCURATE, PRECISE, COMPLETE, RELIABLE, UP-TO-DATE, AND/OR FREE OF INAPPROPRIATE CONTENT.
ix. INSOFAR AS FLYING COLORS PROVIDES ANY WEIGHTS, DIMENSIONS, MEASUREMENTS, COLORS, OR ANY OTHER DESCRIPTIONS AS TO PRODUCTS, THOSE ARE MERE APPROXIMATIONS FOR YOUR CONVENIENCE, WITH NO GUARANTEE AS TO ACCURACY, PRECISION, FREEDOM FROM ERROR, OR MANNER OF APPEARANCE ON YOUR SCREEN.
x. FLYING COLORS AND ITS AFFILIATES HANDLE PRIVATE, FINANCIAL, AND OTHERWISE SENSITIVE INFORMATION WITH REASONABLE SECURITY AND CARE; HOWEVER, WE CANNOT AND DO NOT GUARANTEE THAT ANY TRANSACTION OR TRANSFER OR STORAGE OF INFORMATION IS 100% SECURE. FLYING COLORS AND ITS AFFILIATES DISCLAIM ALL LIABILITY IN CONNECTION WITH ANY UNDESIRED AND/OR HARMFUL DISCLOSURE AND/OR USAGE OF YOUR INFORMATION – PERSONALLY-IDENTIFYING INFORMATION, FINANCIALLY-SENSITIVE INFORMATION, OR OTHERWISE.
xi. IT IS ENTIRELY YOUR RESPONSIBILITY TO ASSESS THE ACCURACY, RELIABILITY, UP-TO-DATENESS, VIABILITY AND APPROPRIATENESS OF OUR SERVICES – AND ANY PRODUCTS, DATA, INFORMATION, MATERIALS, AND CONTENT THERETHROUGH AVAILABLE – ESPECIALLY AS THEY RELATE TO YOUR SPECIFIC NEEDS. YOU ASSUME THE ENTIRE COST OF ALL SERVICES, REPAIRS, CORRECTIONS, REPLACEMENTS, DEBTS, LIABILITIES, OR OTHER EXPENSES THAT MAY ARISE FROM AN ATTEMPT TO USE OR THE ACTUAL USE OF OUR SERVICES AND/OR ANY PRODUCTS, INFORMATION, DATA, MATERIALS, AND/OR CONTENT THERETHROUGH AVAILABLE.
xii. YOU ACKNOWLEDGE THAT FLYING COLORS’S MANUFACTURERS, SUPPLIERS, CARRIERS, AND OTHER THIRD PARTIES PROVIDERS MAY IMPOSE THEIR OWN DISCLAIMERS, WAIVERS, AND/OR LIMITATIONS. YOU THEREFORE AGREE THAT THE DISCLAIMERS, WAIVERS, AND LIMITATIONS APPEARING IN THESE TERMS & CONDITIONS WILL ONLY SERVE TO SUPPLEMENT– AND IN NO MANNER DIMINISH, ELIMINATE, OR SUPPLANT – THE FORCE AND EFFECT OF DISCLAIMERS, WAIVERS, AND/OR LIMITATIONS OF OUR THIRD PARTY PROVIDERS. INSOFAR, AS THERE IS ANY CONFLICT BETWEEN A DISCLAIMER, WAIVER, AND/OR LIMITATION BY FLYING COLORS AND A DISCLAIMER, WAIVER, AND/OR LIMITATION BY ONE OF OUR THIRD PARTY PROVIDERS, YOU AGREE THAT YOU WILL CONSIDER THE APPLICABLE TERM TO BE WHICHEVER PROVIDES THE GREATER PROTECTION FOR FLYING COLORS, AS PERMITTED UNDER LAW, NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY.
xiii. OUR SERVICES MAY RUN ADVERTISEMENTS, FEEDS, AND/OR CONTENT ORIGINATING FROM A THIRD PARTY, OR MAY OTHERWISE OFFER LINKS TO SITES WHICH ARE NOT MAINTAINED BY FLYING COLORS. NEITHER FLYING COLORS NOR ITS AFFILIATES CONTROLS, ENDORSES, OR IS RESPONSIBLE FOR ANY ISSUES ARISING OUT OF, OR RELATING TO, THE INFORMATION, CONTENT, DATA, MATERIALS, PRODUCTS, OR SERVICES AVAILABLE ON OR THROUGH THESE THIRD PARTY ADVERTISEMENTS, SITES, FEEDS, LINKS, AND/OR OTHER SERVICES. NEITHER FLYING COLORS NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD PARTY’S INFORMATION, CONTENT, DATA, MATERIALS, PRODUCTS, AND/OR SERVICES WITH WHICH YOU COME INTO CONTACT VIA OUR SERVICES. FLYING COLORS AND ITS AFFILIATES DISCLAIM ANY ENDORSEMENT RELATING TO, AND LIABILITY FOR (A) LINKS OR FEEDS TO OUR SERVICES FROM ANOTHER SITE; AND (B) LINKS OR FEEDS FROM OUR SERVICES TO ANOTHER SITE.
c. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER LAW, YOU HEREBY AGREE, ON BEHALF OF YOURSELF, AS WELL AS YOUR EXECUTORS, ADMINISTRATORS, HEIRS AND ASSIGNS, TO FULLY AND UNCONDITIONALLY RELEASE FLYING COLORS AND ITS AFFILIATES FROM ANY AND ALL INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, RELIANCE AND/OR PUNITIVE DAMAGES WHICH ARISE OUT OF AND/OR RELATE TO FLYING COLORS’S ACTIONS, OMISSIONS, SERVICES, PRODUCTS, AND/OR THIRD PARTY PROVIDERS. TO THE EXTENT PERMITTED BY LAW, THIS CLAUSE EMBRACES, BUT IS NOT LIMITED TO, A FULL AND UNCONDITIONAL RELEASE FROM: LOST PROFITS; LOST REVENUE; LOSS OF OPPORTUNITY; DELAY; HARM TO REPUTATION; LOSS OF USE OF SERVICES, A PRODUCT, OR ANY ASSOCIATED PRODUCTS OR SERVICES; INTERRUPTION OF BUSINESS; COST OF CAPITAL, FACILITIES, SERVICES, LABOR, AND/OR SALARIES; DOWNTIME, SHUTDOWN, AND/OR SLOW-DOWN COSTS; SPOILAGE OF MATERIALS; INACCURACY, DESTRUCTION, AND/OR LOSS OF ANY DATA; ANY DAMAGES MULTIPLIER, INCLUDING, BUT NOT LIMITED TO, ANY PROVISION AT LAW FOR DOUBLE OR TREBLE DAMAGES; ATTORNEY FEES; LITIGATION COSTS; THE COST OF SUBSTITUTE SERVICES; ANY ADDITIONAL PENALTIES (INCLUDING, WITHOUT LIMITATION, ADMINISTRATIVE AND/OR CIVIL PENALTIES); AND ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, RELIANCE AND/OR PUNITIVE DAMAGES – EVEN IF FLYING COLORS AND/OR ITS AFFILIATES WERE ADVISED AS TO THE POSSIBILITY OF SUCH. INSOFAR AS IT IS LEGALLY PERMITTED, THIS CLAUSE (A) APPLIES REGARDLESS OF WHETHER THE MATTER (A) IMPLICATES NEGLIGENCE, INTENTIONAL CONDUCT, STRICT LIABILITY, OR OTHERWISE; AND/OR (B) INVOLVES A STATUTORY, TORT, CONTRACTUAL AND/OR OTHER DISPUTE. TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE MAXIMUM AGGREGATE LIABILITY FOR DAMAGES, HARMS, LOSSES, COSTS, FEES, EXPENSES, PENALTIES, AND FINES ARISING OUT OF OR RELATING TO FLYING COLORS, OUR AFFILIATES, OUR SERVICES, AND/OR ANY PRODUCT YOU RENT OR PURCHASE SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT PAID TO PURCHASE THE SUBJECT PRODUCT(S) (INCLUDING ANY SHIPPING AND RETURN COSTS, AS WELL AS ANY, ADMINISTRATIVE FEES OR OTHER PENALTIES); OR (B) $10.00.
d. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD FLYING COLORS AND ITS AFFILIATES HARMLESS IN CONNECTION WITH ANY AND ALL THIRD PARTY DISPUTES, CONTROVERSIES, AND/OR CLAIMS FOR DAMAGES, HARMS, DEBTS, LOSSES, LIABILITIES, STATUTORY REMEDIES, FINES, FEES, COSTS AND EXPENSES AND/OR PENALTIES ARISING OUT OF OR RELATING TO YOUR USE OF OUR SERVICES AND/OR YOUR ACTS AND/OR OMISSIONS IN CONNECTION WITH OUR SERVICES, EXCEPT WITH RESPECT TO ACTS AND/OR OMISSIONS ARE ALLEGED TO HAVE RESULTED FROM FLYING COLORS’S SOLE NEGLIGENCE, RECKLESSNESS, KNOWING INTENT, OR STRICT LIABILITY; THIS INDEMNIFICATION PROVISION INCLUDES, WITHOUT LIMITATION, DISPUTES, CLAIMS, AND/OR CONTROVERSIES ARISING OUT OF AND/OR RELATING TO ONE OR MORE PRODUCT(S) THAT YOU PURCHASED FROM FLYING COLORS. YOU ACKNOWLEDGE AND AGREE THAT FLYING COLORS AND ITS AFFILIATES RESERVE THE EXCLUSIVE RIGHT TO CONTROL THE DEFENSE, SETTLEMENT, AND SELECTION OF COUNSEL IN CONNECTION WITH ANY CLAIM, DISPUTE, OR CONTROVERSY FOR WHICH YOU ARE BOUND TO PROVIDE INDEMNIFICATION BY THIS CLAUSE OR ANY OTHER TERM OR CONDITION.
e. THIRD PARTIES. TO PROVIDE A BETTER USER EXPERIENCE, OUR SERVICES MAY MAKE USE OF THIRD PARTY SERVICES, FEATURE THIRD PARTY CONTENT, RUN THIRD PARTY APPLICATIONS, OR LINK TO THIRD PARTY WEBSITES; FOR EXAMPLE, YOU MIGHT SEE US USE A THIRD PARTY LIKE FACEBOOK FOR LOGGING-IN OR YOUTUBE FOR VIDEOS; YOU MIGHT ALSO SEE FLYING COLORS USE THIRD PARTIES TO FACILITATE SHIPPING/DELIVERY, FINANCIAL TRANSACTION PROCESSES, AND CUSTOMER SERVICE. WE DO NOT EXAMINE OR AUDIT ANY THIRD PARTY SERVICES OR OFFERINGS. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING ANY THIRD PARTY SERVICES AND OFFERINGS – YOU ACCESS AND/OR USE THESE SERVICES AND OFFERINGS AT YOUR OWN RISK AND AGREE THAT NEITHER FLYING COLORS NOR ANY OF ITS AFFILIATES IS RESPONSIBLE FOR ANY CLAIMS, OBLIGATIONS, LIABILITIES, COSTS, DEBT, EXPENSES, LOSSES, DAMAGES, CHARGES, FEES, PENALTIES, OR FINES, ARISING OUT OF OR RELATING A THIRD PARTY AND/OR ITS CONTENT, WEBSITE(S), APPLICATION(S) AND/OR OTHER SERVICE(S). THEREFORE, WE ENCOURAGE YOU TO CAREFULLY REVIEW ALL THIRD PARTY TERMS AND CONDITIONS, PRIVACY POLICIES, OPERATIONAL HISTORIES, AND SECURITY PROTOCOLS.
f. INJUNCTIVE RELIEF. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL YOU SEEK TO ENJOIN OR RESTRAIN FLYING COLORS OR ANY OF ITS AFFILIATES FROM PROVIDING SERVICES, INCLUDING, WITHOUT LIMITATION, OPERATING THE WEBSITE FLYINGCOLORS.COM, RENTING PRODUCTS, SELLING PRODUCTS, AND/OR STAYING IN TOUCH WITH OUR COMMUNITY AT LARGE. YOU ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY LAW, YOU ARE NOT ENTITLED TO INJUNCTIVE RELIEF, RESCISSIONS, OR ANY OTHER EQUITABLE REMEDY IN CONNECTION WITH THESE TERMS & CONDITIONS AND ANY AGREEMENT HERETO RELATING, EXCEPT THAT AN ARBITRATOR MAY AWARD INJUNCTIVE RELIEF OR REQUIRE SPECIFIC PERFORMANCE, BUT ONLY THE EXTENT NECESSARY TO RESOLVE YOUR INDIVIDUAL CLAIM(S).
11. Choice of Law, Jurisdiction, Mandatory Arbitration & Class Action Waiver
a. Choice of Law & Venue. Any claim, dispute, suit, matter, or controversy arising out of or relating to Flying Colors, our Services and/or these Terms & Conditions will be construed and governed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. All disputes will be arbitrated (or, if the mandatory arbitration clause herein specified is found to be invalid, litigated) in New York, NY. You hereby waive any defense or claim of lack of personal jurisdiction, the inappropriateness of venue, or forum non conveniens. You acknowledge and agree that this provision is not intended to, in any manner, limit or negate the force or effect of the clause entitled “Arbitration of Claims.”
b. MANDATORY ARBITRATION OF CLAIMS. You and Flying Colors acknowledge and agree that any and all claims, disputes, suits, matters, or controversies between you and Flying Colors arising out of or relating to Flying Colors, our Services, and any Product purchased from Flying Colors, and/or these Terms & Conditions shall be settled exclusively and finally by arbitration, and that you are hereby waiving your right to seek relief in a court of law, including waiver of your right to a trial by jury or a judge. To the extent legally permitted, each party shall advance its own costs, expenses, and fees in an arbitration hereunder. Arbitration shall be conducted by the American Arbitration Association (“AAA”) in accordance with the AAA Consumer Arbitration Rules and before a single, neutral arbitrator to be mutually selected by the parties. To the extent permitted by the arbitrator, the arbitrator will conduct any hearings by telephonic or video conference appearance, rather than in-person. Any award rendered in an arbitration proceeding hereunder shall be final and binding on each of the parties, and judgment may be entered thereon in any court of competent jurisdiction. This agreement to arbitrate shall be enforceable under and subject to the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq.
c. CLASS ACTION WAIVER. You agree that you may only pursue a claim, dispute, suit, matter, or controversy arising out of or relating to Flying Colors, our Services, our sale of Product(s), these Terms & Conditions, and/or any other agreement you may have formed with us in an individual capacity. You agree that you shall not be involved with any class or representative proceeding – or otherwise participate as a lead plaintiff or class member, in a putative or certified class – involving any claim, proceeding, action, controversy, or dispute arising out of or relating to Flying Colors, our Services, our Affiliates, our sale of Product(s), our Terms & Conditions and/or any other agreement you may have formed with us.
d. U.S. Jurisdiction. Flying Colors and its properties are located in and operated from the United States. Flying Colors does not intend to be subject to any non-U.S. law or jurisdiction, under any circumstances, and you agree that you shall not pursue any claims, disputes, or controversies against Flying Colors insofar as they are subject Flying Colors to non-U.S. law or jurisdiction.
e. Reporting Issues to Local, State & Federal Officials. To be clear: nothing in this Agreement, including the Mandatory Arbitration provision and other language, is intended to prevent you from bringing issues (including, without limitation, matters relating to Flying Colors, our Affiliates, these Terms & Conditions, or one or more Products) to the attention of local, state, or federal officials and/or agencies as you deem appropriate.
12. Miscellaneous but Important
a. Assignments. Except as expressly permitted otherwise in writing, you may not assign, delegate, sell, or transfer any of your rights or obligations under this Agreement. Notwithstanding anything herein contrary, Flying Colors may freely assign, delegate, sell, and/or transfer its rights and obligations under this Agreement – and any assets relating to, arising out of, and/or concerning this Agreement – including without limitation circumstances of sale, merger, acquisition, reincorporation, consolidation, reorganization, or other change of control. This Agreement will be binding on your heirs, assigns, administrators, and other legal represents, and shall inure to the benefit for Flying Colors and any of its successors and/or assigns.
b. Force Majeure. You acknowledge and agree that Flying Colors shall hold no liability or responsibility for any harm, damages, penalties, losses, costs, expenses, fees, or issues that result from factors beyond the scope of our reasonable control. This includes without limitation, acts of God, weather, the shutdown of carriers, transportation, and/or utilities, strikes and protests, acts of warfare and/or terrorism, and actions taken by government agencies.
c. Severability. If any of the terms and conditions herein – or any portion(s) of any terms or conditions – are held unenforceable, the impact of that unenforceability (i.e. limitation or exclusion of terms) will be construed as narrowly as possible to the extent permitted by law; moreover, the remainder of the Terms & Conditions herein – and all other portions thereof – shall nevertheless remain in full force and effect to the extent legally permissible. Your jurisdiction may not allow the disclaimer of certain warranties or limitations of certain types of damages. Thus, it is possible that portions of these Terms & Conditions may not apply to you. However, the limitation or exclusion of a particular disclaimer, restriction, limitation, term, or condition shall, in no manner, impact any other provision herein, nor shall it affect the validity or force of that disclaimer, restriction, limitation, term, or condition in other jurisdictions, to the extent allowed by law.
d. Translation. Any translation of these Terms & Conditions is merely provided as a convenience. Any discrepancy or dispute involving a translated version of these Terms & Conditions and the English version of these Terms & Conditions shall be resolved in favor of the English version.
e. Non-Waiver. You acknowledge and agree that any failure by either party to require the other’s strict adherence to any term or condition herein shall, in no manner, be construed as a waiver of any right by that party, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement herein stated. In other words, Flying Colors may enforce and/or exercise our rights under these Terms & Conditions as we deem fit, without having to waive them at any point.
f. Affiliate Ads & Marketing. We reserve the right to run advertisements and promotions through our Services, and to receive a contingency payment, structured payment, bonus and/or commission in connection with our ads and promotions.
g. Non-Endorsement. Your words and actions are yours and yours alone – and the same goes for third parties. You acknowledge and agree that Flying Colors does not support, endorse, hold liability for, or take responsibility for any User Content or any other third party statements or interactions arising out of or relating to our Services; any User Content and any third party statements and interactions solely reflect the statements, positions, and opinions of the person or persons creating the content, making the statement, and/or engaging in the interaction. Although Flying Colors may offer to sell Products manufactured and/or supplied by third parties, you acknowledge and agree that our listings – and any related imagery or information (e.g. pictures of Products; information on dimensions, weight) – do not constitute an endorsement of, or affiliation with, the Product or its manufacturer/supplier, nor do they constitute an assumption of liability or taking of responsibility as to the Product(s) in question.
h. Construed to Reflect Intent of Parties. Insofar as these Terms & Conditions include any errors or ambiguities related to spelling, grammar, or syntax – or any other clear errors or ambiguities – these errors and ambiguities shall be construed to reflect the intent of the parties. This includes, without limitation: (a) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “and” vs. “or” vs. “and/or”; and (b) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “including” – which shall mean “including without limitation,” rather than as point of exclusion, unless otherwise noted; (c) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “Product” vs. “Products” vs. “Product(s)” - which shall not render any language inapplicable by virtue of the fact that you do or do not possess more than one (1) Product.
g. Entire Agreement. These Terms & Conditions – taken along with the incorporated Privacy Policy – represent the entire agreement between you and Flying Colors with respect to your access to, and use of our Services, including, without limitation, your purchase of one or more Product(s) from Flying Colors. These terms and conditions supersede any conflicting agreements or terms or conditions– however and whenever established – between you and Flying Colors, unless Flying Colors explicitly states otherwise in a signed writing, and we reject any term or condition, however and whenever set forth, that conflicts with any term or condition herein listed. You hereby agree that any term or condition you set forth, however and whenever set forth, that conflicts with any term or condition herein listed, shall be void and of no force or effect, regardless of any statement or indication to the contrary, unless Flying Colors explicitly states otherwise in a signed writing.
h. Export Control Laws. As with all applicable laws, rules, regulations, restrictions, and standards, you agree to abide by all applicable laws, rules, regulations, restrictions and standards concerning United States export controls, including, but not limited to, any applicable embargoes.
i. Digital Millennium Copyright Act (17 U.S.C. §512)
i. Reporting Infringement. If you believe that your copyrighted work appears in connection with our Services and/or is accessible through our Services in a way that constitutes copyright infringement, please notify Flying Colors by providing us with the following information in writing to the address listed below: (1) the physical or electronic signature of either the copyright owner or of a person authorized to act on the owner's behalf; (2) a description of the copyrighted work you claim has been infringed, and a description of the activity that you claim to be infringing; (3) identification of the URL or other specific location where the material or activity you claim to be infringing is located or is occurring; (4) your name, address, telephone number and, if you have one, your email address; (5) a statement by you that you have a good faith belief that use in our Services of the copyrighted work in the manner you are complaining of is not authorized by the copyright owner, any agent of the copyright owner, or the law; and (6) a statement by you, made under penalty of perjury, that the information you have provided in your notice is accurate and that you are either the copyright owner, or are authorized to act on behalf of the copyright owner.
ii. Counter-Claims of Infringement. If you believe you are the subject of an improper infringement claim, please notify Flying Colors by providing us with the following information in writing to the address listed below: (1) the physical or electronic signature of either the copyright owner, or of a person authorized to act on the owner's behalf; (2) a detailed description of the copyrighted work you claim has been subject to an improper infringement claim; (3) identification of the URL or other specific location from where the allegedly infringing material has been removed, modified, and/or deleted; (4) your name, address, telephone number and, if you have one, your email address; (5) the following statement: “I hold a legitimate, good faith belief that the allegedly offending material, as herein described, has been subject to complaint, removed, or rendered inaccessible as the result of misidentification, misfeasance, malfeasance, and/or mistake. All of the factual information I have provided in connection with this document is true and correct. I consent to the jurisdiction of the District Court in the United States judicial district in which I live – or, to the extent I reside outside the United States, in the Southern District of New York– and will accept service of process from the person, or the agent of the person who sent the initial notice of infringement to Flying Colors. All attestations herein are given under penalty of perjury.”
j. Headings. Our headings and section titles – in these Terms & Conditions and the incorporated Privacy Policy – are provided strictly for your convenience; they have no binding or representative effect on either Party.
k. Contacting Flying Colors.
i. Legal Notices. You agree that all legal notices and legal-related correspondence will be provided in hard copy to: Flying Colors LLC Attention: Legal Department, 169 54th St, Brooklyn, NY 11220.
ii. California Consumer Affairs. Per California Code of Civil Procedure 1789.3, California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs: 1625 North Market Blvd., Sacramento, CA 95834; (916) 445-1254 or (800) 952-5210.
iii. Your feedback matters to us. Please let us know if you have questions, concerns, or feedback regarding these Terms & Conditions or our Privacy Policy by emailing legal@flyingcolors.co. Likewise, please share any general feedback on Flying Colors, the Products we offer, and our Services by emailing hello@flyingcolors.co.
