Phoenix Flair

Last Updated: 11/10/2023

Introduction
This Agreement is made by and between Phoenix Flair LLC, a Wisconsin State Limited Liability Company (hereinafter referred to as 'Phoenix Flair', or 'us'), and the individual or entity accessing or using our services, whether as a user, member, client, or subscriber (hereinafter collectively referred to as 'User', 'Member', 'Client', 'Subscriber', 'You' or 'Your').

Electronic Agreement

This Agreement is a legally binding, valid, and enforceable electronic contract that contains the terms governing your use of our website(s) and Services. By accessing and/or using the Website(s) and Services, you accept this Agreement and consent to the terms, conditions and notices contained or referenced herein. Your consent to these terms is binding in the same way as placing your handwritten signature on a contract printed on paper.

Our Intellectual Property
All content on the Website(s) may constitute the intellectual property of Phoenix Flair. Except in circumstances expressly authorized in these Terms of Use or a separate, superseding agreement, no material on the Website(s), and no material transmitted as part of our Products or Services, may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever without the express, written consent of Phoenix Flair.

Refunds
You are responsible for ensuring the accuracy and completeness of all deliverables. This includes, but is not limited to, verification for typographical errors, industry claims, and accuracy. You must notify Phoenix Flair within 30 days of any errors or issues. If you fail to notify Phoenix Flair in writing within 30 days, then you have accepted delivery in an “as-is” status. Your sole remedy for any errors in a production or deliverable is to use the refund process or revision process as discussed below.

Refund Policy for Amazon Services (Gallery Images, A+ Content, Titles, Bullets, Descriptions, and Bundled Services): We are committed to your satisfaction. If the delivered Amazon Services do not meet your expectations, you are eligible for a refund, subject to the following conditions: a) The refund request is made within 30 days of project delivery, and b) Phoenix Flair has been afforded a reasonable opportunity to address and rectify any issues, defined as a minimum of two rounds of revisions post written refund request. We encourage a sincere and good faith assessment of revisions, aiming for alignment with your initial project goals.

Refunds for Amazon Posts. The Amazon Posts service and its refund policy are covered under a separate agreement.

Refunds for Custom Projects and Other Services

A refund may be requested within 30 days of delivery of any deliverable. Full or partial refunds will be issued at the sole discretion of Phoenix Flair.

Refunds for Photography and Renderings. Photography and renderings are non-refundable.

Production and Revisions
Production and Service Speed. In any case where Phoenix Flair offers production or service timelines/speeds or capacities such cases should be considered a reference only and not a guarantee. Service speeds are subject to factors such as the volume of work and the complexity of the project.

‍Amazon Services Revisions. Free revisions are included with all Amazon services where the revisions pertain to correcting errors in the content. For all other changes and revisions, we offer 2 rounds of revisions per project. Additional rounds of revisions beyond the second round are an additional cost.

‍In All Other Cases. Revision policy in all other cases is established by the Scope of Work for the service.

Revisions are defined as slight modifications to a project to bring it into alignment with the client’s expectations or requirements.

Revisions which change the scope of the project, or which contradict previous revisions may be subject to additional charges. Phoenix Flair reserves the right to refuse revisions or charge additional fees for revisions which it determines, in its sole discretion, are abusive, excessive, or outside of the scope of the project.

Scope of Work
Retail Services and Products. The Scope of Work for retail services available for sale at www.PhoenixFlair.com is as described on the services listings and is subject to change without warning at the discretion of Phoenix Flair.

Custom Projects. The Scope of Work for custom projects will be defined by a separate agreement.

Content Posted by Users
Your Public Content. By using the Website(s), you understand that any public content you post on the Website(s) and/or any other site, social media account, page, group, community or other forum or page operated by Phoenix Flair in connection with the Website(s) and/or the Services provided thereon, is solely your responsibility, and further, that such content can be seen by anyone, including other Members, Users and the general public.

Limitation of Liability Regarding Public Content. We are not responsible for any consequences of content posted by anyone on the Website(s) and/or any other site, social media account, page, group, community or other forum or page operated by Phoenix Flair in connection with the Website(s) and/or the Services provided thereon. We make no guarantees whatsoever as to the quality, accuracy, correctness, or integrity of any content posted by users of the Website(s) or any third-party site.

You acknowledge that, by using the Website(s) and/or by interacting with us and other users on third party platforms, you may be exposed to offensive, indecent, or objectionable content, for which Phoenix Flair is not responsible. Under no circumstances will Phoenix Flair be liable in any way for any content or information posted on a public forum by anyone, including, but not limited to a) any errors or omissions in said content; or b) any loss, damage or injury of any kind, incurred as a result of the use of, or reliance upon, any content posted, emailed or otherwise transmitted via or to the Website(s) or any affiliated sites or third party platform accounts, by any user or member of the public.

Warranties Made by You. By posting content on the Website(s), forums, groups, communities or any third party account or social media account associated therewith, you acknowledge, represent and warrant that:

a) Your content and personal information posted in any public forums, communities, groups and membership areas associated with the Website(s) and Services provided thereon may be available to other Members and users, as well as some third party sites;
b) You are the sole author and owner of all intellectual property and other rights to any content posted by you, or have the necessary licenses, rights, consents and permissions to use said content;
c) You consent to the potential use by Phoenix Flair of content posted by you in its marketing and advertising materials and campaigns, online or offline;
d) You waive any and all "moral rights" to said content, and you do not require that any personally identifying information be used in connection with said content, or any derivative works of or upgrades or updates there to and to the extent your moral rights or similar rights cannot be waived, you expressly agree not to enforce such rights
e) You will at all times comply with the Federal Trade Commission’s requirements as well as all applicable laws regarding the use of endorsements and testimonials in advertising, including making a clear and conspicuous disclosure if you receive any compensation or incentive in any form in exchange for posting content on PhoenixFlair.com or any third party sites, platforms or forums;
f) You are at least 13 years old; g) If you are a minor, that you have obtained the consent of your parent(s) or legal guardian to use the Website(s), as well as their express agreement and consent to these Terms of Use;

You also represent and warrant that any content you submit to the Website(s) and any communities, forums, groups, and membership areas associated with the Website(s) and Services provided thereon:
a) Is accurate, is not false, and is not misleading;
b) Does not violate any law, statute, ordinance or regulation;
c) Will not cause harm, damage, injury or the violation of the rights of any person or entity under the law;
d) Is not harmful or damaging to minors;
e) Does not infringe on the intellectual property rights of any person or entity under pertinent state, national and international intellectual property laws as they pertain to trademarks, copyrights, patents, trade secrets and other forms of intellectual property;
f) Does not violate the privacy rights of any person or entity;
g) Is not a violation of a contractual obligation or fiduciary relationship owed by you to any other person or entity;
h) Is not hateful, defamatory, bullying, obscene, racially or religiously offensive, abusive, harassing, or threatening to any person, group or entity;
i) Does not constitute phishing, promotion, unsolicited or unauthorized advertising, spam, junk mail, and is not made in furtherance of any pyramid scheme or other form of solicitation;
j) Does not contain any computer viruses, worms or other potentially damaging programs or files; and
k) Does not impersonate or otherwise use the name or likeness of, or imply any affiliation with, any other person or entity without their express permission.

Screening and Modification of Content. While Phoenix Flair is under no obligation to screen any content submitted by its members or users, we reserve the right to pre-screen, change, condense, delete, or refuse to post any content on the Website(s) and any social media accounts, groups, communities, and other public forums associated therewith or operated by Phoenix Flair. Phoenix Flair reserves the right to remove any content that violates these Terms of Use, without notice, and without any guarantee of recourse on your part.

Our Use of Your Content
Reference Material, Intellectual Property and Deliverables. Phoenix Flair makes no ownership claims to a client’s reference material, Intellectual Property or finished design deliverables. When reference material, intellectual property and deliverables are transferred between you and Phoenix Flair you acknowledge that a) Phoenix Flair has no obligation of confidentiality with respect thereto, and b) Phoenix Flair is not liable to pay you any compensation, reimbursement, or other payment unless expressly agreed to by Phoenix Flair in a written agreement. You hereby grant to Phoenix Flair LLC a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the content we produce for you solely in connection with Phoenix Flair’s performance of the Services and promotional uses of the Deliverables as authorized in this Agreement. (We can display your designs in our portfolio and on our website(s))

Ideas and Suggestions. If you mail, e-mail or otherwise transmit any content to us, or post any content to the Website(s) and/or any site or social media account, page, group, community or other forum or page associated there with and/or otherwise owned or operated by Phoenix Flair, and said content posted by you includes any ideas, suggestions, documents or proposals to Phoenix Flair, you acknowledge that Phoenix Flair is not liable to pay you any compensation, reimbursement, or other payment unless expressly agreed to by Phoenix Flair in a written agreement.

‍Permission and License. For any content, except as noted above, that you transmit to or via the Website(s), and/or any other site or social media account, page, group or other forum operated by Phoenix Flair, you grant Phoenix Flair a worldwide, non-exclusive, perpetual, royalty-free, irrevocable, sub-licensable and transferable right and license to use, reproduce, display, publicly perform, distribute, share, communicate, copy, modify, delete, publish, edit, adapt, translate, create derivative works from and/or sell such content and/or incorporate such content into any work, form, technology, medium or process without making any compensation to you. This license shall survive the termination of these Terms of Use and your use of the Website(s) and/or our Services, and shall include sharing your content, or any part thereof, with third-party brands whose product we sell.

‍Photographs. You hereby grant Phoenix Flair permission to use any and all photographs taken by Phoenix Flair or its agents or employees or submitted by you to us. Phoenix Flair’s use of said photographs may include use in any media for any purpose, including marketing, advertising, promotion, or packaging of any product or service sold and/or marketed by Phoenix Flair. You further agree that said photographs may be licensed by Phoenix Flair to any third party, and may be combined with other graphics, text, sounds and videos, or otherwise modified, altered and/or manipulated to fit the use intended by Phoenix Flair or its licensees, without paying any royalty, fee, or other monetary compensation to you.

You hereby agree to release, hold harmless and forever discharge Phoenix Flair from any and all claims, losses, damages or liabilities that you may suffer as a result of the use of any photographs taken by Phoenix Flair or its agents or employees, or submitted by you to us via mail, e-mail, website submission or on an open forum such as a social media platform. You further acknowledge and agree that this release is irrevocable and is binding upon your heirs and assigns.

Arbitration
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY TO HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

IF YOU ARE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

AGREEMENT TO ARBITRATE: Any disputes arising out of or relating to this Terms of Use Agreement and/or your use of the Website(s), any products or services sold or offered for sale thereon, any posted content, and/or your use of any community and membership areas, shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association, and each party hereby consents to any such disputes being so resolved. Judgment on the award so rendered in any such arbitration may be entered in any court having jurisdiction thereof. However, you agree that this arbitration clause does not apply to the extent that the claim or lawsuit is being initiated by Phoenix Flair LLC, based on your violation, or threatened violation of Phoenix Flair’s intellectual property (trademark, copyright, patent, or trade secret) rights. In such cases, Phoenix Flair LLC may bring a lawsuit for injunctive relief to stop the infringement of its intellectual property rights, as well as for damages and attorney fees, where applicable, without first engaging in arbitration or other informal dispute-resolution process otherwise required by these Terms of Use.

‍WAIVER OF JURY TRIAL: By electing to resolve all claims and disputes via binding arbitration, THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONALAND STATUTORY RIGHTS TO APPEAR IN COURT AND HOLD A TRIAL IN FRONT OF A JUDGE OR A JURY. Should any litigation arise between you and Phoenix Flair LLC in any court, state or federal, to vacate or enforce an arbitration award or otherwise, YOU AND PHOENIX FLAIR WAIVE ALL THE RIGHTS TO A JURY TRIAL and elect the dispute to be resolved by a judge.

If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.

General Provisions
Third Party Content. Phoenix Flair may provide content from third parties, and links to sites operated by third parties over whom Phoenix Flair has no control. We do not monitor, approve, or update the content posted on these sites, and our inclusion of links thereto in no way implies or constitutes any association between Phoenix Flair and said third party, nor does it constitute any form of guarantee, endorsement, or representation with respect to the completeness or accuracy of the referenced third-party content or site. You acknowledge that you use and rely on third party content solely at your own risk.

‍Reservation of Rights. Phoenix Flair reserves the right to terminate, in its sole discretion and without notice, any membership or user account, and/or block any user’s or member’s ability to use or access the Website(s), or any of its pages, in any manner.

Phoenix Flair may access, preserve and disclose any personal information collected, including your account information, usage, device and browser information, browsing behavior and other trackable data, and content posted by you, for any lawful purpose, as detailed in our Privacy Policy. We will always preserve such personal information if required to do so by law or court order, or if supported by a good faith belief that doing so is reasonably necessary to a) comply with legal process; b) respond to claims by third parties; c) enforce these Terms of Use; d) respond to your customer service requests, or e) protect the rights, property, life, health, safety or security of Phoenix Flair, its employees, its users, or any other person or entity.

To protect our customers, ourselves, and the public from fraud and other unauthorized or illegal activity, we further reserve the right to screen all orders made through the Website(s) for fraud and unauthorized or illegal activity, and to refuse to process any order found fraudulent, illegal, or unauthorized, or suspected of fraud or unauthorized or illegal activity. We may also cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. If verification is required before processing your order, we may call you at the contact information you provided to confirm your order, address, shipping and/or billing information, and/or identity.

‍Warranty Disclaimer. PHOENIX FLAIR LLC IS PROVIDING THIS WEBSITE(S), ITS CONTENTS, THE PRODUCTS AND SERVICES AVAILABLE THERE ON, AND THE MEMBERSHIP AREA AND FORUMS. ON AN "AS-IS" BASIS. PHOENIX FLAIR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, CONTENTS, OR OPERATION OF THE WEBSITE(S) OR ANY OF ITS FEATURES OR FUNCTIONALITIES, INCLUDING THE MEMBERSHIP AREA.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PHOENIX FLAIR SPECIFICALLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AS WELL AS ANY AND ALL WARRANTIES RELATING TO THE ACCURACY, TIMELINESS, RELIABILITY, COMPLETENESS OR CURRENTNESS OF ANY INFORMATION CONTAINED ON OR ACCESSIBLE THROUGH THE WEBSITE(S) OR THROUGH ANY PRODUCT OR SERVICE PROVIDED BY PHOENIX FLAIR.

It is possible for the Website(s) and our Products and Services to contain mistakes, inaccuracies, and materials that conflict with these Terms. Should a conflict arise between anything posted on any Phoenix Flair website or service and these Terms, these Terms shall control.

Disclaimer of Guarantee Regarding Intellectual Property Infringement Phoenix Flair will not knowingly and deliberately infringe upon any third-party’s intellectual property. However, Phoenix Flair disclaims any guarantee or warranty regarding infringement of a third-party’s intellectual property. You acknowledge that you are responsible for any infringement of intellectual property by a deliverable ordered by or requested by you. You agree to indemnify, defend, and hold harmless Phoenix Flair LLC for any infringement of intellectual property caused by an order or request made by you or by use of a deliverable or product from Phoenix Flair to you. This includes, but is not limited to, infringement of a third-party’s trademark, copyright, or patent rights.
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‍Liability Limitation. PHOENIX FLAIR SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, OR IN ANY WAY RELATING TO, THE USE OF THE WEBSITE(S), THE COMMUNITY AND MEMBERSHIP AREAS, ANY SOCIAL MEDIA OR OTHER PUBLIC FORUMS AND THIRD-PARTY ACCOUNTS OWNED AND/OR OPERATED BY Phoenix Flair, OR ANY OF THE PRODUCTS OR SERVICES OFFERED FOR PURCHASE OR SALE THROUGH THE ABOVE CHANNELS. THIS LIMITATION OF LIABILITY APPLIES TO, BUT IS NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, PROPERTY DAMAGE, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF DATA, AND CLAIMS OF THIRD PARTIES. Under no circumstances will Phoenix Flair be liable to a user or customer for an amount in excess of the fees paid by the user or customer to Phoenix Flair.

‍Indemnification. By using the Website(s), any community or membership areas, or any social media or other public forums and third party accounts associated therewith, you agree to defend, indemnify and hold harmless Phoenix Flair and its officers, directors, agents, parents and subsidiaries, joint ventures, employees, affiliates, assigns and third-party service providers, from all claims, causes of action, demands, losses, liabilities, costs, expenses, obligations and damages of every kind and character without limit, including reasonable legal fees, arising out of your conduct, such conduct being inclusive of, but not limited to a) your misuse of the Website(s) and any community or membership areas; b) your violation of any term of these Terms of Use; c) a breach of your representations and warranties set forth above regarding content posted by you; d) your violation of any law or the rights of a third party (including, without limitation, any privacy, copyright, trademark, property or right violation); or e) any loss, damage, lawsuit or claim based on the allegation that content posted by you caused damage to a third party. Your indemnity obligation includes, but is not limited to, any third-party claim against Phoenix Flair for liability for any actual and alleged losses, damages, or other liability caused by or related to you. Your indemnification obligation will survive the termination of these Terms of Use and your use of the Website and any membership or community areas, groups, forums, social media pages and accounts, and other pages and platforms associated with the Website(s) and Services provided or described thereon.

‍DMCA Notices. If you believe that any of your work or content has been copied, displayed, used, reproduced, or posted on the Website(s) or any community or membership area or affiliated forum, page or third party platform, without your consent, and in a way that constitutes copyright infringement, please provide us with the following written information in accordance with the Digital Millennium Copyright Act (the "DMCA"):

a) A signature (electronic or physical) of the person authorized to act on behalf of the owner of the copyright;
b) A precise description of the copyrighted work that is the subject of the alleged violation;
c) A description of where the infringing material is located on the Website(s) or any community/membership area;
d) A written statement by you in which you attest that you have a good-faith belief that use complained of is not authorized by the owner of the copyright or under the law;
e) Your name, address, telephone number and email address; and
f) A written statement in which you attest, under penalty of perjury, that you are the copyright owner or are authorized to act on the copyright owner's behalf, and that the information provided in your DMCA notice is true and accurate.

All DMCA notices should be directed to:

Phoenix Flair LLC
Re: DMCA Notification
4149 Merrimac Way, Oneida WI 54155

+1 (920) 212-6101
support@phoenixflair.com

Privacy. Please see our Privacy Policy at www.PhoenixFlair.com/Privacy for details regarding the manner in which Phoenix Flair may collect, process and use personally identifiable information about you, including any information you supply or we may collect in connection with your use of the Website(s), including any community and member areas.

‍No Waiver. Failure of Phoenix Flair to insist on, or take immediate action to enforce strict compliance with, any of the terms, covenants, warranties, and conditions contained in this Terms of Use, shall not be deemed a waiver of such terms, covenants, warranties, and conditions, or of any similar right or power hereunder, at any subsequent time. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term.

‍Choice of Law and Forum Selection. This Agreement shall be governed and construed in accordance with the laws of the State of Wisconsin, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Wisconsin, excluding that State’s choice-of-law principles.

With regard to those circumstances in which the Arbitration provisions of this Agreement, if any, do not exclude litigation in court, you hereby expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Brown County, Wisconsin.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND PHOENIX FLAIR AGREE THAT ANY CLAIM OR LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE WEBSITE(S), ANY PRODUCTS OR SERVICES PURCHASED OR AVAILABLE FOR SALE THERE ON, AND ANY COMMUNITY OR MEMBERSHIP ACCOUNTS ASSOCIATED THERE WITH, MUST COMMENCE WITHIN ONE(1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION FORMING THE BASIS OF THE CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

‍No Class Actions. By using the Website(s) and associated services, you consent, acknowledge, and agree that class actions, class arbitrations, mass actions, private attorney general actions, and consolidation of matters with other arbitrations are expressly prohibited under these Terms of Use. All disputes against Phoenix Flair LLC must be resolved on an individual basis. You may not bring a claim or lawsuit against Phoenix Flair LLC as a plaintiff or class member in a class action, consolidate action, mass action, or represent active action.

‍Force Majeure. Phoenix Flair will be excused from any delay or failure of performance required under these Terms of Use if caused by reason of any event, circumstance, occurrence, or contingency, regardless of whether it was foreseeable, which is a) not caused by, and is not within the reasonable control of Phoenix Flair, and b) prevents Phoenix Flair from performing its obligations under this agreement. Such events may include but are not limited to acts of war; insurrections; fire; laws, proclamations, edicts, ordinances, or regulations; strikes, lockouts, or other labor disputes; riots; explosions; and hurricanes, earthquakes, floods, and other acts of nature. The obligations and rights of Phoenix Flair shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption.

‍Assignment. Phoenix Flair may assign its rights under this Terms of Use document at any time, without providing any notice to you. You may not assign your rights under these Terms of Use without the express written consent of Phoenix Flair or its assigns.

‍Survival. All provisions that logically ought to survive termination of this Terms of Use, including but not limited to applicable Representations, Covenants, Warranties, Limitation of Liability, Indemnity, Choice of Law, Forum Selection, and Arbitration provisions, shall survive, and continue to apply even after you stop using the Website(s) and the content and services provided through same.

‍Severability. If any provision of this Terms of Use document is declared by any court of competent jurisdiction (or arbitrator) to be illegal, void, unenforceable or invalid for any reason under applicable law, the remaining parts of these Terms of Use shall remain in full force and effect and shall continue to be valid and enforceable. If a court (or arbitrator) finds that an unenforceable portion of these Terms of Use may be made enforceable by limiting such provision, then such provision shall be deemed written, construed, and enforced as so limited.

‍Integration. This agreement is fully integrated, and along with the Privacy Policy and any other documents explicitly incorporated by reference, constitutes the entire agreement between the parties with respect to the matters deal with herein and supersedes any previous agreement in relation to such matters. The Parties represent that they are not relying upon any pre-contractual statements.

‍Notices. Notices from us to you may be made via e-mail or regular mail. Any notice required to be given to Phoenix Flair under these Terms or otherwise, must be in writing, addressed as follows:

Phoenix Flair LLC

4149 Merrimac Way

Oneida, WI 54155 USA

Phone: +1 (920) 212-6101

Email: support@phoenixflair.com

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Effective as of: November 12, 2023