Graphics, Type and Color Enterprises, Inc. (herein referred to as “Clubflyers,” “we,” “us” or “our“) provides and makes available web sites located at clubflyers.com and clubflyersmag.com (the “Sites“ or "Site"). On our Sites we provide products, information, promotions and tools (collectively the "Service") to our Site visitors ("you" or "your").
You must be at least 13 years of age to use the Sites or Service. Please read this Agreement carefully before accessing or using the Sites or Service. By accessing or using any part of the Sites or Service, you acknowledge that you have read, understood, and agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access or use the Sites or Service.
A. USER RESPONSIBILITIES
To complete your registration, you will provide an email address and a password. You are responsible for maintaining the confidentiality of the password and account, and are responsible for all activities that occur under your password or account. It is important for you to protect against unauthorized access to your computer. Be sure to log off when you finish using a shared computer.
You agree to (a) immediately notify us of any unauthorized use of your account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
You are solely responsible for all content that you upload, download, copy, post, publish, display, create, make available or allow any third party to make available, email or otherwise transmit (hereinafter collectively “transmit”) in relation to the Sites or Service (such content, the “User Content”). You are entirely responsible for the contents of, and any harm resulting from, that User Content. That is the case regardless of whether the User Content in question constitutes text, graphics, multimedia, or computer software or code. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation, removing the offending User Content from the Site or Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
In using the Sites and Service, you agree to not:
- transmit any User Content that is: unlawful; harmful; threatening; excessively violent, abusive; vulgar; harassing; defamatory; obscene; pornographic; profane; indecent; inflammatory; libelous; tortious; hateful; racially, ethnically, socially, politically, legally, morally, religiously or otherwise objectionable; invasive of another's rights including but not limited to rights of celebrity, publicity, or privacy; or may pose a security risk to any person, such as by incorporating their unauthorized images, names or personal information.
- transmit any User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual property or proprietary right of any party. By transmitting any User Content, you represent and warrant that you have the lawful right to reproduce, distribute and license or sublicense such User Content, that the User Content complies with all applicable federal, state and local laws, regulations and ordinances as well as any contractual or fiduciary duties, that the User Content does not infringe upon the intellectual property or other rights of others, and that there are no outstanding disputes in connection with those rights. If your employer has rights to intellectual property you transmit, you have either (i) received permission from your employer to transmit the User Content, or (ii) secured from your employer a waiver as to all rights in or to the User Content; you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms.
- transmit any User Content that would constitute, encourage, further or incite any criminal activity, illegal activity, violence, or that would otherwise create liability or violate any local, state, national, or international law.
- use the Sites or Service to harm minors in any way, including, but not limited to, uploading Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct, or any other activity that may be seen as condoning or encouraging unsafe practices that would result in the physical, mental or moral harm of children.
- solicit personal information from anyone under the age of 18.
- transmit any unsolicited or unauthorized advertising, promotional materials, contests, junk mail, spam, chain letters, or any other form of solicitation, or contains unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing).
- transmit false or misleading information.
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
- transmit any User Content that is machine- or randomly-generated.
- harvest or otherwise collect information about users, including email addresses or other contact information, without their consent.
- use a manual or automatic device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the Sites or Service.
- disrupt or interfere with any other user's use or enjoyment of the Site or affiliated or linked websites.
- expose Clubflyers or its users to any harm or liability of any type.
- disrupt or interfere with the security of, or otherwise abuse or disrupt, the Sites or Service, system resources, accounts, servers, or networks connected to or accessible through the Site or affiliated or linked websites.
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Sites or Service or any activity being conducted on or through the Sites or Service.
- take any action that imposes an unreasonable load on the Sites or Service.
- frame a Site or Service within another webpage, or link to a Site or Service, except as permitted in writing by Clubflyers.
- transmit any User Content that contains software viruses, worms, malware, Trojan horses or other harmful or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
- copy, delete, modify or distribute any material posted on the Sites or Service by Clubflyers or any other person or entity, including Clubflyers’s copyrights and trademarks, unless otherwise explicitly permitted.
- access, tamper with or use non-public areas of the Sites or Service, or obtain or attempt to access any materials or information through any means not intentionally made available or provided for through the Sites and Service, including any attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising, making up or underlying the Sites or Service. Unauthorized individuals attempting to this clause may be subject to prosecution.
- transfer your account to another party without Clubflyers’s written consent.
B. USER CONTENT
As between you and Clubflyers you shall retain ownership of your User Content that you submit to the Sites or Service. Except as otherwise provided elsewhere in this Agreement or on the Site, any User Content that you submit or post to the Sites or Service and/or provide us will be treated as nonconfidential and nonproprietary, and you grant to Clubflyers and its affiliates a perpetual, worldwide, non-exclusive, royalty-free, transferable, sub-licensable license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your User Content for our commercially reasonable purposes. You further grant all users of the Sites or Service Service permission to view your User Content for their personal, non-commercial purposes, or for other purposes authorized by Clubflyers via the Sites and Service. The above licenses will continue unless and until you remove or have removed your User Content from the Sites or Service, in which case the licenses will terminate within a commercially reasonable period of time. Notwithstanding the foregoing, the license for legal archival/preservation purposes will continue indefinitely, and you acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Sites or Service (“Feedback”), provided by you to Clubflyers are non-confidential and Clubflyers will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Please note that if you delete User Content, we will use reasonable efforts to remove it from the Sites or Service, but you acknowledge that caching or references to the User Content may not be made immediately unavailable.
You represent and warrant that you own or otherwise control all of the rights to the reviews, comments and other User Content that you post on this Site and that use of your reviews, comments, or other User Content by us will not infringe upon or violate the rights of any third party. You shall not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any User Content.
C. COPYRIGHT INFRINGEMENT AND DMCA
As Clubflyers asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by the Sites or Service violates your copyright, you are encouraged to notify Clubflyers in accordance with Clubflyers’s Digital Millennium Copyright Act (“DMCA”) Policy. Clubflyers will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material.
D. PRODUCTS AND SERVICES
Prices for products and services (Products) are described on the Sites and are incorporated into this Agreement by reference. All prices are in US dollars. Prices and Products may change at our discretion. We may offer promotional discounts from time-to-time. You must agree to the terms of the promotion in order to be given the discount. You agree not to use more than one discount per item, unless such use is expressly permitted by us. Title and risk of loss for all Products ordered by you shall pass to you on our shipment to the shipping carrier or upon other digital or personal transfer. We reserve the right to cancel any order for any Product that for any reason, including orders that may violate the intellectual property rights of a third party and will notify the purchaser that the order has been canceled.
The information and Product listings on the Sites may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). Please note that such errors, inaccuracies or omissions may relate to Product description, pricing and availability. We also reserve the right to limit or restrict quantities of Products (including after you have submitted your order) for any reason, including, without limitation, if the Product violates any terms of this Agreement.
In the event a Product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or Product information received from our partners, we reserve the right to refuse or cancel any orders placed for Products listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and you have been charged for the sale. If you have already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account or refund the amount in the manner in which the purchase was made by you . If we have overcharged for any Product, we will issue a refund to you for the difference between what you were charged and the correct price of the relevant Product.
We attempt to be as accurate as possible to provide a compelling user experience. We do not warrant that Product descriptions or other content of the Sites or Service is accurate, complete, reliable, current, or error-free. If a Product offered by us is not as described, your sole remedy is to return it.
E. USE OF THE SERVICE
The Sites and Service contains material, including but not limited to software, text, data, graphics and images (collectively referred to as the “Site Content”). We may own the Site Content or portions of the Site Content may be made available to us through arrangements that we have with third-parties. The Site Content is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. Unauthorized use of the Site Content may result in violation of those rights and laws. You have no rights in or to the Site Content, and you will not use, copy or display the Site Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Site Content on any copy you make of the Site Content. You may not sell, transfer, assign, license, sublicense, or modify the Site Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Site Content in any way for any public or commercial purpose except as permitted by Clubflyers. If you violate any part of this Agreement, your right to access and/or use the Sites, Site Content, and Service shall automatically terminate and you shall immediately destroy any copies you have made of the Site Content.
Clubflyers’s trademarks, trade dress, service marks, and logos (the “Clubflyers Trademarks“) used and displayed on the Sites and Service are registered and unregistered trademarks or service marks belonging to Clubflyers. Other company, product, and service names displayed on the Sites or Service may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks“, and, collectively with the Clubflyers Trademarks, the “Trademarks“). Nothing contained in the Sites and Service and/or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Sites and Service without Clubflyer’s prior written consent specific for each such use. The Trademarks may not be used to disparage Clubflyers or the applicable third-party, Clubflyers’s or third-party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without Clubflyers’s prior written consent. All goodwill generated from the use of any Clubflyer Trademark shall inure solely to Clubflyers’s benefit.
You acknowledge and agree that the Sites or Service and any software provided to you or used in connection with the Sites or Service, including, for example and without limitation, any design tools, API's or other scripts ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to your compliance with the terms and conditions of this Agreement and any additional terms provided in a separate applicable agreement, Clubflyers grants you a non-exclusive, non-transferable, non-sublicenseable license to use the Software solely as necessary to use this Sites or Service as intended and provided that you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Sites, Service or Software, in whole or in part.
For any Products or other intellectual property designed or developed by Clubflyers, Clubflyers shall be and remain the sole owner of all intellectual property rights thereto.
To the extent that Clubflyers has the right to do so, Clubflyers grants you a non-exclusive, revocable and limited license to use the Site Content and Clubflyers's Software, tools, images, and product photographs for the purposes of designing products that are to be manufactured by Clubflyers and sold and transferred to you, with no further right to you to sell, transfer, assign, license, sublicense, make copies of, modify, or make derivative works of any such manufactured products. We reserve the right to terminate this license at any time.
F. CLUBFLYERS RIGHTS
You acknowledge that we do not pre-screen User Content, but that we shall have the right (but not the obligation) in our sole discretion to reject or remove any User Content that, in our reasonable opinion, violates this Agreement or is in any way harmful or objectionable.
We do not endorse any User Content submitted to the Sites or Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content.
You acknowledge that we may establish general practices and limits concerning use of the Sites or Service, including without limitation the maximum period of time that data or other content will be retained and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or other User Content maintained or uploaded by the Sites or Service. We reserve the right to terminate accounts that are inactive for an extended period of time. You acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
G. THIRD PARTY LINKS
The Sites or Service may provide, or third parties may provide, links to other websites or resources. Because we have no control of such sites and resources, you acknowledge and agree that Clubflyers is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources or the policies or such sites and resources. We not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. If you decide to access any external sites or resources, you do so at your own risk.
Clubflyers may terminate your access to all or any part of the Sites or Service, and remove and discard any User Content you may have contributed to the Site or Service, at any time, in its sole discretion, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement, you may simply discontinue using the Sites and Service. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
I. DISCLAIMER OF WARRANTIES
The Sites and Service are provided on an “as is” and “as available” basis without any warranties of any kind. You understand that you use the Sites and Service at your own discretion and risk.
To the fullest extent permissible pursuant to applicable law, Clubflyers, its affiliates, their respective officers, directors, employees, agents, suppliers, or licensors (collectively, the “Clubflyers Parties”) hereby disclaim all warranties of any kind, express or implied, including, without limitation, any warranties of title, merchantability, fitness for a particular purpose and non-infringement.
Clubflyers Parties make no warranties about the Sites or Services, including but not limited to any warranty that (a) the Sites or Service will meet your requirements; (b) that the Sites or Service will be error free, free of undiscovered computer viruses or similar contamination, or that access thereto will be continuous or uninterrupted; (c) the quality of any Service or other Products purchased or obtained by you through the Sites or Service will meet your expectations; and (d) that defects will be corrected.
Except as otherwise agreed in writing, Clubflyers Parties assume no responsibility for and make no warranty or representation as to the accuracy, currency, completeness, reliability or usefulness of content or products distributed or made available by third parties though the Sites or Service.
J. LIMITATION ON LIABILITY
In no event will Clubflyers Parties be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any direct, indirect, indirect, special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption or termination of your use of the Sites or Service or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Clubflyers under this agreement during the twelve (12) month period prior to the cause of action. Clubflyers shall have no liability for any failure or delay due to matters beyond their reasonable control. You specifically acknowledge that Clubflyers shall not be liable for content or the defamatory, offensive, or illegal conduct of any third party. The foregoing shall not apply to the extent prohibited by applicable law.
You agree to indemnify and hold harmless Clubflyers Parties from all judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney's fees, expert witness fees, and costs of litigation arising out of or based on (a) User Content you submit, post to or transmit through the Sites or Service, (b) your use or misuse of the content, Site or Service, (c) your connection to the Sites or Service, (d) your violation of the Agreement or (e) your violation of any rights of a third party. Clubflyers reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Clubflyers’s defense of such matter.
This Agreement constitutes the entire agreement between you and Clubflyers concerning the subject matter hereof, and supersedes all other communications, written or oral, with regard to the subject matter. This Agreement may only be modified by a written amendment signed by an authorized executive of Clubflyers, or by the posting by Clubflyers of a revised version.
Except to the extent applicable law, if any, provides otherwise, this Agreement and any access to or use of the Sites and Service will be governed by the laws of the state of Florida, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Miami-Dade County, Florida. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute relating in any way to your use or access of the Sites or Service or to the Products you purchase through the Sites shall be submitted to confidential binding arbitration for the maximum judgment enforceable. The arbitration shall take place in Miami, Florida, in the English language and the arbitral decision may be enforced in any court. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Florida. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim is initiated in court rather than in arbitration we each waive any right to a jury trial. You and Clubflyers agree to submit to the personal and exclusive jurisdiction of the courts located within the county Miami-Dade, Florida. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
If any part of this Agreement is held invalid, illegal or unenforceable under any applicable statute or rule of law, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
The failure of a party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of the right or provision. Clubflyers's failure to act with respect to a breach by you or others does not waive Clubflyers's right to act with respect to subsequent or similar breaches.
This Agreement will be binding upon and will inure to the benefit of the parties, their successors, licensees and permitted assigns.
The section headings are provided merely for convenience and shall not be given any legal import.
You agree that you are solely responsible for your interactions with any other user in connection with the Sites and Service and Clubflyers will have no liability or responsibility with respect thereto. Clubflyers reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Sites or Service.
No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
Clubflyers does not guarantee continuous, uninterrupted access to the Site or Service, and operation of the Site or Service may be interfered with by numerous factors outside Clubflyers's control.
Please send any questions or comments (excluding inquiries related to copyright infringement) regarding the Sites or Service to:
Graphics Type and Color Enterprises, Inc.
Attention: Legal Department
2300 NW 7th Avenue
Miami, FL 33127