Effective Date: October 2011
Welcome to the Flare Code Inc. (“Flare Code”) Website. This Terms of Service ("TOS") document contains the terms and conditions that govern your use of the Website and all Flare Code-provided online content and functionalities, whether accessed at www.flarecode.com, other addresses, or through other applications and platforms, including mobile applications (collectively, the “Website”). This TOS describes your rights and responsibilities and what you can expect from the Website. Use of the Website constitutes your acceptance of and agreement to this TOS.
Flare Code reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement at www.flarecode.com. In the event of changes we deem material to this TOS, you may also be notified by email if Flare Code has your email. If any modification is unacceptable to you, your only recourse is to not use the Website. Your continued use of the Website following posting of a change notice or new TOS on the Website will constitute binding acceptance of the changes.
1.1 Flare Code’s platform brings together multiple feeds of digital content from across the web along with rich static content. This content is optimized for viewing on mobile and traditional web browsers, as well as several mobile applications. We also provide users with a branded QR code they can use to disseminate their content as they wish. All “Flare Codes” have built-in comment functionality, allowing for a community discussion centered around wherever the code appears and the content contained wherein. Flare Code may offer other ancillary services not enumerated herein.
2.1 Eligibility. Flare Code will only knowingly provide the Website to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, or otherwise under the age of majority where you reside, but at least 13 years of age, you may use the Website only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The Website is not intended for children under the age of 13. The Website is only available to users in the United States of America. You will provide a third-party account to us to initiate and access your Flare Code account Should that email account be de-activated for any reason, your Content may or may not be retained, and you will not be able to use the Website until the email account is re-activated or you provide an alternate account. Flare Code is not responsible for any email accounts that do not work with the Website.
2.2 Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of this TOS, any applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Website.
2.3 Your License to Use the Website (a) Flare Code solely and exclusively owns all intellectual property and other rights, title and interest in and to the Website, except as expressly provided for in these TOS. For example and without limitation, Flare Code owns the copyrights in and to the Website, and and certain technology used in providing the Website, and any trademarks registered to Flare Code. You will not acquire any right, title or interest therein under this TOS or otherwise to any intellectual property owned by Flare Code. (b) Flare Code grants you a limited revocable license to access and use the Website and the for its intended purposes, subject to your compliance with this TOS. This license does not include the right to collect or use information contained on the Website for purposes prohibited by Flare Code; to compete with the Website; to create derivative works based on the content of the Website; or download or copy the Website (other than page caching). If you use the Website in a manner that exceeds the scope of this license or you breach this TOS, Flare Code may revoke the license granted to you. (c) This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 4.1.
3.1 Prohibited Use. You may only use the Website as expressly permitted by these TOS. You may not cause harm to the Website. Specifically, but not by way of limitation, you may not: (i) interfere with the Website by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Website; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet "search engine," hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Website; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Flare Code’s name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the Website; or (viii) assist or encourage any third party in engaging in any activity prohibited by this TOS.
3.3 Ordering Policies. If you purchase products or services from us, the terms and conditions of those purchases will be set forth during the ordering process and you shall abide by those terms. If you purchase products or services from third parties, whether other users or other parties, the terms and conditions would be as set forth by those third parties. You agree that Flare Code shall not be responsible nor liable for any claims, damages, or liabilities associated with your purchase or use of any products or services from third parties, even if you procured such products or services through the Website.
4.1 Licensing Your Content to Flare Code You will retain ownership of the Content (images, video, audio, data, and other, text, and other content) that you upload to the Website. You hereby grant to Flare Code a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as Flare Code deems necessary to enable you to use the Website and services. Flare Code may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of providing the Website.
4.2 Prohibited Content In addition to other activities Flare Code may prohibit in this TOS, you may not provide to or post on or through the Website any graphics, text, photographs, images, video, audio or other material that invades anyone's privacy, or facilitates or encourages conduct that would constitute a criminal offense, give rise to civil liability, or that otherwise violates any local, state, federal, national or international law or regulation (e.g., drug use, underage drinking). You agree to use the Website only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability.
5.1 Monitoring Flare Code reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If Flare Code determines, in its sole and absolute discretion, that you or another Flare Code user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, in Flare Code’s sole discretion, Flare Code may cancel such transaction, delete some or all of your or another user’s content, or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party, and may prevent you from using the Website.
5.2 Modification of the Website Flare Code reserves the right to modify the organization, structure or "look and feel" of the Website, and may change, suspend, or discontinue any aspect of the Websie including the availability of any Product, at any time without any liability to you or any third party. Flare Code shall have complete discretion over the features, functions, prices and other terms and conditions on which the Website is offered to its users. In our sole discretion we may remove content. Retention of any content (online or offline) is in our sole discretion, unless otherwise required by proper legal or judicial process or legal requirement.
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant Flare Code permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that Flare Code will have no obligation to keep any Submissions confidential. You will not bring a claim against Flare Code based on "moral rights" or the likes arising from Flare Code’s use of a Submission.
7.1 Mutual Representations and Warranties. You represent and warrant to Flare Code and Flare Code represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under this TOS, (ii) the execution and performance of your or its obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) this TOS is a legal, valid and binding obligation of the party entering into this TOS, enforceable in accordance with its terms and conditions.
7.2 By You. You represent and warrant to Flare Code hat, in your use of the Website, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any Flare Code or any third party, and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Flare Code that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) Flare Code will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that Flare Code incurs in providing the Website; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware; and (v) you will comply with any and all policies and procedures of Flare Code, including but not limited to any other policies relating to content that Flare Code may post on the Website or dd to these TOS.
DISCLAIMER OF WARRANTIES. FLARE CODE PROVIDES THE WEBSITE ON AN "AS IS" AND "AS AVAILABLE" BASIS. FLARE CODE DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. FLARE CODE MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY. FLARE CODE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEBSITE OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY YOU TO FLARE CODE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
You hereby agree to indemnify and hold Flare Code and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission. If you have to indemnify Flare Code under this Section, Flare Code will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Flare Code’s express written permission.
11.1 Termination. In its sole discretion, with or without notice to you, Flare Code may: (i) suspend, limit your access to or terminate your use of the Website, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from the Website, and Flare Code’s servers and directories and (iv) prohibit you from using the Website.
11.2 Survival. Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until Flare Code chooses to terminate this TOS.
11.3 Effect of Termination. If you or Flare Code terminate your use of the Website, Flare Code may delete any Content or other materials relating to your use of the Website on Flarecode.com's servers or otherwise in its possession and Flare Code will have no liability to you or any third party for doing so. Flare Code may also terminate your use of the Website but maintain your Content. In either case, Flare Code will have no liability to you or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Flare Code, you must use the both of following addresses: 340 West State Street, Room 244, Athens, OH 45707, and firstname.lastname@example.org. If Flare Code provides notice to you, Flare Code will use the contact information provided by you to Flarecode.com. You agree that Flare Code shall not be held responsible for any notice that is not delivered because of causes outside of Flare Code’s control, including but not limited to, the de-activation of the email account you provided to Flare Code. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
All disputes arising out of, relating to or connected with these TOS or your use of any part of the Website will be exclusively resolved under confidential binding arbitration held in Columbus, Ohio, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying Ohio law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Columbus, Ohio. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and State courts in Franklin County, Ohio. Notwithstanding anything to the contrary in this Section 13, Flare Code may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Ohio without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of Flare Code, which may be withheld in its sole discretion. This TOS (including all of the policies and other Agreements described in this TOS, which are incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and Flare Code are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.
Flare Code respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Flare Code will respond expeditiously to claims of copyright infringement committed using the Website that are reported to the Designated Copyright Agent identified in the sample notice below.
If you are a copyright owner, authorized to act on behalf of one or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Website by completing the following DMCA Notice of Alleged Infringement and delivering it to the Designated Copyright Agent. Upon receipt of Notice as described below, Flare Code will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Website and/or termination of the Website user’s account.
DMCA Notice of Alleged Infringement ("Notice")
Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the relevant website where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Designated Copyright Agent:
c/o Flare Code
340 West State Street
Athens, OH 45701
and email to:
If Flare Code has removed or blocked material uploaded by you because we received a Notice as described above, you have the right to provide us with a counter notification if you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification. Your counter notification must be in the form described below. If we receive a valid counter notification from you then, unless the party claiming to own the copyright in the material files an action seeking a court order against you, Flare Code will restore the content within 10-14 business days after receipt of your counter notification. Note that filing a counter notification may lead to legal proceedings between you and the copyright claimant and there may be adverse legal consequences if false or bad faith allegations are made by you, so it is suggested that you seek legal advice before proceeding.
DMCA Counter Notification
To qualify as a valid counter notification to Flare Code, you must submit a written counter notification with the following information to Flare Code:
Your first and last name, mailing address, telephone number, email address, and the account where you uploaded the material in question;
Identify the specific URL(s) of the material that has been removed or blocked;
Include both of the following statements in the body of the counter notification above your signature:
"I consent to the jurisdiction of the Federal District Court for the district in which my mailing address is located, or if my mailing address is outside the United States of America I consent to the jurisdiction of the judicial district in which Flare Code is located, and will accept service of process from the party claiming copyright ownership of the removed or blocked material."
"I swear under penalty of perjury, that I have a good faith belief that the content was removed or blocked as a result of a mistake or misidentification of the material to be removed or blocked."
You must sign the counter notification with you full legal name either by physical signature if sending via postal service, or by valid electronic signature; and
You must send the counter notification to:
340 West State Street, Room 244, Athens, OH 45701