Welcome to the Dream Maker Software ("Dream Maker Software") web site, which is located at http://www.FlagArt.com (the "Web Site"). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Web Site and Flag Art Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the Flag Art Service. Use of the Dream Maker Software Web Site constitutes acceptance of these TOS.
If you do not agree with any of these terms, do not access or otherwise use the Web Site or any information or materials contained on the Web Site. Your use of the Web Site shall be deemed to be your agreement to abide by each of the terms set forth below.
Dream Maker Software 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 on the Dream Maker Software Web Site. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Web Site and the Flag Art Service. Your continued use of the Dream Maker Software Web Site following posting of a change notice or new TOS on the Dream Maker Software Web Site will constitute binding acceptance of the changes.
Dream Maker Software provides a number of Internet-based services through the Web Site (all such services, collectively, the "Flag Art Service"). One such service enables users to purchase software and CD-ROMS (collectively, "Products"). Dream Maker Software allows users to browse the Web Site and purchase Products. Dream Maker Software may offer a number of other services on its Web Site which may change from time to time.
Dream Maker Software will only knowingly provide the Flag Art Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Flag Art Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Flag Art Service is not intended for children under 13 years of age.
Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Flag Art Service and the Web Site.
Dream Maker Software solely and exclusively owns all intellectual property and other rights, title and interest in and to the Flag Art Service and Web Site, except as expressly provided for in these TOS. For example and without limitation, Dream Maker Software owns the trademarks Dream Maker Software, FlagArt.com and Cliptures; the copyrights in and to the Web Site, and certain technology used in providing the Flag Art Service. You will not acquire any right, title or interest therein under these TOS or otherwise.
Dream Maker Software grants you a limited revocable license to access and use the Web Site and the Flag Art Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Web Site for purposes prohibited by Dream Maker Software; to compete with Dream Maker Software; create derivative works based on the content of the Web Site; or download or copy the Web Site (other than page caching). If you use the Web Site in a manner that exceeds the scope of this license or breach this TOS, Dream Maker Software may revoke the license granted to you.
You are granted a limited, nonexclusive right to create a "hypertext" link to the Web Site provided that such link is to the entry page of this Web Site and does not portray Dream Maker Software or any of its other products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time for any reason whatsoever. You may not use, frame, or utilize framing techniques to enclose any Dream Maker Software trademark, logo or trade name or other proprietary information including the images found at the Web Site, the content of any text or the layout/design of any page or any form contained on a page without the express written consent of Dream Maker Software.
Prohibited Use. You may only use the Flag Art Service as expressly permitted by Dream Maker Software. You may not cause harm to the Web Site or the Flag Art Service. Specifically, but not by way of limitation, you may not: (i) interfere with the Flag Art Service 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 Flag Art Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Web Site, 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 Flag Art Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Dream Maker Software's name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the Flag Art Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS.
Ordering Policies. If you purchase Products, you agree to do so in accordance with Dream Maker Software's End User License Agreement (EULA).
Password Restricted Areas of the Site. Certain areas of the Web Site may be password restricted to registered users ("Password-Protected Areas"). If you have registered as an authorized user to gain access to these Password-Protected Areas, you agree that you are entirely responsible for maintaining the confidentiality of your password, and agree to notify Dream Maker Software if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. You agree that you are entirely responsible for any and all activities that occur under your account, including any fees that may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You agree to immediately notify Dream Maker Software of any unauthorized use of your account or any other breach of security in relation to your password or the Web Site that is known to you.
Monitoring. Dream Maker Software reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Web Site. If Dream Maker Software determines, in its sole and absolute discretion, that you or another Dream Maker Software user will breach a term or condition of these TOS or that such transaction or communication is inappropriate, Dream Maker Software may cancel such transaction 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.
Modification of the Service. Dream Maker Software may modify the Flag Art Service at any time with or without notice to you, and will incur no liability for doing so.
Your Submissions. 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 Dream Maker Software permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that Dream Maker Software will have no obligation to keep any Submissions confidential. You will not bring a claim against Dream Maker Software based on "moral rights" or the likes arising from Dream Maker Software's use of a Submission.
Submissions by Others. Dream Maker Software does not control the content posted by third parties via the Web Site and, as such, does not guarantee the accuracy, integrity or quality of such content. You understand that by using the Web Site, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Dream Maker Software be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted emailed, transmitted or otherwise made available via the Web Site by third parties.
Mutual Representations and Warranties. You represent and warrant to Dream Maker Software and Dream Maker Software represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
By You. You represent and warrant to Dream Maker Software that, in your use of the Flag Art Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Dream Maker Software 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) Dream Maker Software 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 Dream Maker Software incurs in providing the Flag Art Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
DISCLAIMER OF WARRANTIES. DREAM MAKER SOFTWARE PROVIDES THE WEB SITE AND FLAG ART SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. DREAM MAKER SOFTWARE DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, FLAG ART SERVICE 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. DREAM MAKER SOFTWARE 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.
EXCLUSION OF DAMAGES. DREAM MAKER SOFTWARE 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 FLAG ART SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY. IN NO EVENT WILL DREAM MAKER SOFTWARE'S LIABILITY IN CONNECTION WITH THESE TOS EXCEED THE GREATER OF (I) THE AMOUNT PAID TO DREAM MAKER SOFTWARE BY YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY, OR (II) ONE HUNDRED DOLLARS ($100).
You must indemnify and hold Dream Maker Software 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 of these TOS through any act or omission. If you have to indemnify Dream Maker Software under this Section, Dream Maker Software 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 Dream Maker Software's express written permission.
You agree that, under certain circumstances and without prior notice, Dream Maker Software may suspend or terminate your use of the Web Site or Flag Art Service, including without limitation, if it believes, in its sole and absolute discretion, that you have breached a term of these TOS. You acknowledge and agree that all suspensions and terminations shall be made in the sole discretion of Dream Maker Software and that Dream Maker Software shall not be liable to you or any other party for the termination of your access to the Web Site.
These TOS will survive indefinitely unless and until Dream Maker Software chooses to terminate them.
If you or Dream Maker Software terminates your use of the Web Site or the Flag Art Service, Dream Maker Software may delete any Content or other materials relating to your use of the Flag Art Service on Dream Maker Software's servers or otherwise in its possession and Dream Maker Software 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 Dream Maker Software, you must use the following addresses: ~MAILING ADDRESS`. If Dream Maker Software provides notice to you, Dream Maker Software will use the contact information provided by you to Dream Maker Software. 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 Flag Art Service will be exclusively resolved under confidential binding arbitration held in Douglas County, Colorado before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying Colorado 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. To the fullest extent permitted by applicable law, no arbitration under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Douglas County, Colorado. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and Colorado State courts in Douglas County. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the Flag Art Service must be asserted individually. Notwithstanding anything to the contrary in this section, Dream Maker Software 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 Colorado without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Dream Maker Software. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby 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 these 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 Dream Maker Software are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these TOS. The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.
Dream Maker Software
PO Box 630875
Highlands Ranch, Colorado 80163