Terms of Use

The Flair Chocolatier website and all subdomains (collectively, the “Site(s)”) are operated by Flair Chocolatier, Inc. (“Flair”, “we”, or “us”). These terms of use (“Terms of Use”) set forth the terms and conditions under which you (the “User” or “you”) are authorized to use our Sites.

To the extent rules or guidelines affecting your use of the Sites are found elsewhere on our Sites, those rules and guidelines (including, but not limited to our Privacy and Shipping policies) are hereby incorporated by reference into these Terms of Use.By using our Sites, you agree to these Terms of Use and the aforementioned policies. If you do not agree to these Terms of Use, you should immediately cease all usage of our Sites.

1. THE SITE.

1.1  Description of the Service. Flair’s Sites provide information about Flair’s products, allow users to purchase Flair’s products, provide different ways to interact with Flair through newsletters, blogs, social media, and other outlets, and allow users to sign up for loyalty programs.

1.2  Content. Our Sites may contain text, photographs, videos, audio clips, or other content (collectively the “Content”). Both existing and new Content, services, or features added to our Sites are subject to these Terms of Use.

1.3  Revisions. Flair may revise Site features and functions at any time, including without limitation by removing such features and functions. Flair reserves the right to modify or discontinue all or any portion of our Sites with or without notice to you. In no case shall Flair be liable to User for making such changes.

2. USER.

2.1  User. As a condition of your right to use the Sites, you represent that you are of legal age to enter into a binding contract and that you are not a person barred from visiting the Sites and accessing the Content under the laws of the United States or other country.

2.2  User Submitted Content. User may be afforded the opportunity to submit content to the Sites, including but not limited to User reviews, pictures, and other content (“User Submitted Content”). User warrants that it possesses all ownership rights and/or license grants necessary to submit any User Submitted Content.

Flair shall have no liability for any User Submitted Content, whether submitted by you or any other user. User shall indemnify and hold Flair harmless against any action or claim arising from or related to User Submitted Content. User hereby grants to Flair a non-exclusive, royalty-free, worldwide, irrevocable, transferable, sublicensable, perpetual license to use, display, reproduce, make derivatives from, and distribute User Submitted Content as necessary to offer, display, operate, market, sell, and improve the Sites at Flair’s sole discretion.

Flair shall have sole and absolute discretion to remove any User Submitted Content it deems inappropriate.

In addition, you are prohibited from interfering with, creating an excessive burden on, or otherwise disrupting our Sites, servers, or networks connected to them. We reserve the right (but have no obligation) in our sole discretion to pre-screen, edit, refuse, move, or remove any User Content that is posted on our Sites or prohibit your access to our Sites in the event of a violation of these Terms of Use.

3. THIRD-PARTY SITES AND THIRD-PARTY CONTENT.

3.1  Third-Party Services. Portions of the Sites, such as our payment processing, may be operated on behalf of Flair by third-parties, and are thus subject to the terms of use and/or privacy policies of those parties. Flair shall not be responsible for the acts or omissions of these providers nor any content or representation made by them.

3.2  Third-Party Content. Our Sites may also include links to, or embedded, content from the Internet that is owned and operated by third-parties, including but not limited to social media content. You acknowledge that we are not responsible for such content and that you may be subject to the terms and conditions of those third-parties. For the avoidance of doubt, Flair shall have no liability for the acts or omissions of any third-party.

4. ORDERS.

4.1  Availability. While we make our best effort to provide you with up-to-date information regarding available products, availability is subject to change at any time. Flair makes no representations or warranties regarding the availability of any product. In the event of a technical or clerical error in the published availability of any product, Flair reserves the right to cancel your order and provide a refund or replacement for your purchase (including after your purchase is confirmed) and you hereby waive all other claims related thereto.

4.2  Returns. If you are not satisfied with any product with any item ordered from the Sites for any reason, please contact customerservice@flairchocolatier.com to arrange an exchange or return.

5. IP OWNERSHIP.

5.1  Ownership. Flair owns all worldwide right, title and interest in and to the Sites, the Content, the trademarks reproduced throughout, all derivatives thereof, and all worldwide intellectual property rights therein. This Agreement does not grant User any intellectual property license or rights. You recognize that the Sites, the Content, and their components are protected by copyright and other laws.

6. REGISTRATION.

6.1  Site Registration. Certain features of our Sites (such as making a purchase) may require you to register by providing your personal information, such as your name, e-mail address, credit card number, and other information.You may also wish to register on our Sites to receive information, participate, in our loyalty programs, subscribe to email lists, or enter a promotion.

If you wish to register on our Sites, you agree to provide accurate information about yourself as required by the applicable registration form. You also agree that you will only register one account on the site. We reserve the right to suspend or terminate your use of our Sites if we reasonably believe at our sole discretion that you have violated these Terms of Use or any policy incorporated herein. You are responsible for maintaining the confidentiality of your account details and you are fully responsible for all activities that occur under your account, whether made by you or not. You agree to notify us immediately of any known or suspected unauthorized use of your account. We cannot and will not be liable for any loss or damage arising from your failure to protect the confidentiality of your account data.

7. ADDITIONAL POLICIES.

7.1  Privacy Policy. As noted above, the Privacy Policy is incorporated by reference herein. It describes the information we collect when you and others use our Sites, as well as how we use the information, and some of the steps we take to protect your privacy.You hereby consent to our use of your personal information in accordance with our Privacy Policy.

7.2  Additional Policies. Additional policies and/or terms may apply to your use of the Sites and/or its features. Such policies include, but are not limited to the Flair Loyalty Program policy and Flair Shipping Policy. You agree to be subject to these terms and policies, and you continued use of the Sites and its features represents your acceptance thereof.

8. DISCLAIMERS AND LIMITATION OF LIABILITY.

8.1  Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, FLAIR, ITS RELATED ENTITIES, ITS SERVICE PROVIDERS, ITS LICENSORS, AND ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY THE “FLAIR PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO USE OR OPERATION OF THE SITES (INCLUDING WITHOUT LIMITATION, PARTICIPATION IN OUR LOYALTY PROGRAM), WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOUR USE OF OUR SITES IS AT YOUR SOLE RISK. OUR SITES AND ALL CONTENT, PRODUCTS, PROGRAMS, AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

THE FLAIR PARTIES ARE NOT RESPONSIBLE FOR ERRONEOUS DELETION OR FAILURE TO STORE ANY OF YOUR PERSONAL SETTINGS OR COMMUNICATIONS, OR ANY LOSS OR DAMAGE OF ANY KIND YOU CLAIM WAS INCURRED AS A RESULT OF THE USE OF OUR SITES. UNDER NO CIRCUMSTANCES, WILL ANY OF THE FLAIR PARTIES BE LIABLE TO YOU OR TO ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR ANY LOSS, INJURY, LIABILITY, DAMAGE, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON OUR SITES OR ANY CONTENT, PRODUCT, OR SERVICE PROVIDED TO YOU THROUGH OR IN CONNECTION WITH OUR SITES. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, GOODWILL, REVENUE, OR PROFITS. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER BASIS; EVEN IF ANY FLAIR PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, ILLEGAL, OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE FLAIR PARTIES UNDER SUCH CIRCUMSTANCES TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100 USD). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

WITH REGARDS TO CONTENT RELATING TO NUTRITIONAL INFORMATION ON THE SITE:

THIS SITE MAY OFFER HEALTH, WELLNESS, FITNESS, AND NUTRITIONAL INFORMATION THAT IS DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR NUTRITION, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THIS SITE. THE USE OF ANY INFORMATION PROVIDED ON THIS SITE IS SOLELY AT YOUR OWN RISK.

9. TERM.

9.1  Term. This Agreement (the “Term”) will commence on the date you first access the Sites and shall continue in effect until terminated per its terms herein.

9.2  Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof.

9.3  Termination for Convenience. Flair may terminate this Agreement at its sole discretion by providing notice to you.

9.4  Survival. The following sections shall survive the termination of this Agreement for any reason: 1.3, 2 - 8, 9.4, 10, 11, and 12. Further any provisions that must survive to fulfill their essential purpose shall do so. For the avoidance of doubt, User’s ability to access the Sites will be terminated in conjunction with the termination of this Agreement.

10. INDEMNIFICATION.

10.1  Indemnity. User will defend, indemnify, and hold harmless Flair and the Flair Associates (as defined below) against any “Indemnified Claim,” meaning any claim, suit, losses, damages, or proceeding arising out of or related to User’s alleged or actual use of, misuse of, or failure to use the Sites, including without limitation: a.) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information; and b.) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Sites through User’s account, including without limitation by User User Submitted Content.Flair will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Flair Associates” are Flair’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

11. GENERAL.

11.1  Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law provisions.

11.2  Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

11.3  Notices. Flair may send notices pursuant to this Agreement to User’s email contact points provided by User, and such notices will be deemed received 24 hours after they are sent. User may send notices pursuant to this Agreement to sales@flairchocolatier.com.

11.4  Severability. In the event any provision of this Agreement or its exhibit(s) is held to be invalid or unenforceable, the remaining provisions thereof shall remain in full force and effect.

11.5  Compliance with Laws. User agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States. To the extent any export laws, rules or regulations prohibit Flair from complying with any of its obligations hereunder, such failure shall be excused and shall not constitute a breach of this Agreement.

11.6  Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.

11.7  Assignment/Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Flair may assign this Agreement to an Affiliate, to the surviving party in a merger of Flair into another entity, or to an acquirer of all or substantially all of that Flair’s business assets. This Agreement will be binding upon and inure to the benefit of the respective permitted successors and assigns of the Parties.

11.8  Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.

11.9  Non-Exclusive Remedies. Unless expressly set forth as an exclusive and/or sole remedy, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

11.10  Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.

11.11  Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.

11.12  Amendment. Flair may amend this Agreement from time to time by posting an amended version on its Application or Website. User’s continued use of the Service following the effective date of an amendment will confirm User’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.

11.13  Copyright Complaints. Flair respects the intellectual property rights of others and shall respond expeditiously to properly reported instances of infringement thereof. User agrees to report instances of alleged copyright infringement in accordance with 17 U.S.C. § 512(c)(3), or per other applicable law. Flair reserves the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Flair’s designated agent for receipt of notice of alleged copyright infringement on the Services is:

Designated agent:                                      Copyright Infringement Notices

customerservice@flairchocolatier.com

If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Flair or the alleged infringer as the result of Flair relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

Flair has the right, but not the obligation, to monitor any materials submitted by you or otherwise made available on the Services, to investigate any reported or apparent violation of this Agreement, and to take any action that Flair in its sole discretion deems appropriate, including termination hereunder.

12. ARBITRATION AND CLASS ACTION WAIVER

Please read this section carefully. It affects your legal rights concerning any disputes between you and Flair.

12.1  Any controversy or claim arising out of, relating to or connected with this Agreement, or the breach thereof, shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment confirming the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Any arbitration under this Agreement shall be administered by and held in the regional office of the American Arbitration Association selected by you. The arbitrator(s) shall have no authority to award punitive damages, but may award equitable relief. The arbitrator(s) shall enforce the terms of this Agreement, and to the extent it is necessary and appropriate to go outside the terms of the Agreement to reach a decision, the arbitrator(s) shall follow the applicable law.

Any proceedings to resolve or litigate any dispute, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, neither you nor Flair will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or Flair acts or proposes to act in a representative capacity. You and Flair further agree that no arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of you, Flair, and all parties to any such arbitration or proceeding.

12.2  You may opt-out of the arbitration and class action waiver clause of Section 12.1 above by sending an e-mail in the below format with the below information to customerservice@flairchocolatier.com within 30 days of your agreement to these terms. By doing so you agree to submit to the exclusive jurisdiction of any State or Federal court located in New York County, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts.