1. Description of Service and Acceptance of Terms
1.1 Definitions. Defying Gravity, LLC d/b/a Last Call Trivia Flex ("Flex," "we," or "us") provides an online service consisting of a selection of materials used to produce live trivia shows and other content (collectively, the "Content") to You, the subscriber. Our Content and any other products, features, tools, materials, or other services (including third party branded services) offered from time to time by Flex through a variety of Access Points (defined below) are referred to collectively as the "Services." The Content is provided so that you, the subscriber, can access the Flex Content and Services and create live trivia shows that you produce in your own bar, pub, restaurant or other commercial or private space (“Shows”). Shows are provided in sets of four Shows. The term “Finalized Show” means a Show for which all of the necessary components have been downloaded from the Flex site. The term "Access Points" refers to, collectively, the dashboard.lastcalltrivia.com website (the “Flex Site"), applications, and other places where any Services are available, including websites and applications of Flex's third party distribution partners and other websites where users or website operators are permitted to embed or have otherwise licensed from Pub Tilt.
2. Changes to These Terms
We may need to make changes to these Terms from time to time for many reasons. For example, we may need to reflect updates in how the Services work or changes in the law. You should look at these Terms regularly, which are posted on the Flex Site at dashboard.lastcalltrivia.com/terms/. If we make a material change to these Terms, we will notify you by posting a notice on the Flex Site. If you are a registered user, we will also send an email to the email address you most recently provided to us prior to the material change taking effect. Therefore, it is important that you keep your account information, including email address, updated. Any material change to these Terms will be effective automatically 30 days after the revised Terms are first posted or, for users who register or otherwise provide opt-in consent during this 30-day period, at the time of registration or consent, as applicable.
3. Access and Use of the Services
3.1 The Content. You may only access, view and print the Content for commercial or non-commercial purposes in compliance with these Terms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Content including geo-filtering mechanisms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Content unless as expressly provided herein or as otherwise expressly permitted by Flex in writing. You may not incorporate the Content into, or stream or retransmit the Content via, any hardware or software application or make it available via frames or in-line links unless expressly permitted by Flex in writing. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Content unless authorized by Flex. The Content covered by these restrictions includes without limitation any text, graphics, layout, interface, logos, photographs, audio and video materials, and stills. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Content, including montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards, and merchandise, unless expressly permitted by Flex in writing. This prohibition applies even if you intend to give away the derivative materials free of charge.
3.2 Ownership & Grant of License. You agree that Flex owns and retains all rights to the Content. You further agree that the Content you access, view and/or print as part of the Services is owned or controlled by Flex and Flex's licensors. The Services and the Content are protected by copyright, trademark, and other intellectual property laws, and you are granted a limited, revocable license to print and use only those materials necessary to conduct one trivia show in one location each week per subscription.
3.3 Your Responsibilities. In order for us to keep the Services safe and available for everyone to use, we all have to follow the same rules of the road. You and other users must use the Services for lawful, commercial or non-commercial, and appropriate purposes only. Your commitment to this principle is critical. You agree to observe the Services and Content restrictions detailed above, and further agree that you will not use the Services in a way that:
- violates the rights of others, including patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary rights;
- uses technology or other means to access, index, frame or link to the Services (including the Content) that is not authorized by Flex (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Services);
- involves accessing the Services (including the Content) through any automated means, including "robots," "spiders," or "offline readers" (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices - but not caches or archives - of the Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
- introduces viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- damages, disables, overburdens, impairs, or gains unauthorized access to the Services, including Flex's servers, computer network, or user accounts;
- removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Services (including the Content);
- uses the Services to advertise or promote services that are not expressly approved in advance in writing by Flex;
- encourages conduct that would constitute a criminal offense or give rise to civil liability;
- violates these Terms or any guidelines or policies posted by Flex;
- interferes with any other party's use and enjoyment of the Services; or
- attempts to do any of the foregoing.
If Flex determines in its sole discretion that you are violating any of these Terms, we may (i) notify you, and/or (ii) use technical measures to block or restrict your access or use of the Services. In either case, you agree to immediately stop accessing or using in any way (or attempting to access or use) the Services, and you agree not to circumvent, avoid, or bypass such restrictions, or otherwise restore or attempt to restore such access or use.
3.4 No Spam/Unsolicited Communications. We know how annoying and upsetting it can be to receive unwanted email or instant messages from people you do not know. Therefore, you may not use the Services to harvest information about users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications. You understand that we may employ technical measures to prevent spam or unsolicited bulk or other communications from entering, utilizing, or remaining within our computer or communications networks. If you send spam, advertising, or other unsolicited communications of any kind through the Services, you acknowledge that you will have caused substantial harm to Flex and that the amount of such harm would be extremely difficult to measure.
3.5 Software Downloads. In order to participate in certain Services or access certain Content, you may be notified that it is necessary to download software or other materials or agree to additional terms and conditions. Unless otherwise provided by these additional terms and conditions, they are hereby incorporated into these Terms.
3.6 Modification/Suspension/Discontinuation. We regularly make changes to the Services. The availability of the Content as well as Access Points through which the Services are available will change from time to time. Flex reserves the right to replace or remove any Content available to you through the Services, and to otherwise make changes in how we operate the Services. We hope not to, but we may change, suspend, or discontinue - temporarily or permanently - some or all of the Services (including the Content and the devices through which the Services are accessed), with respect to any or all users, at any time without notice. In our continued assessment of the Services, we may from time to time, with respect to any or all of our users, experiment with or otherwise offer certain features or other elements of the Services, including promotional features, user interfaces, plans, pricing, and advertisements. You acknowledge that Flex may do so in Flex's sole discretion at any time without notice. You also agree that Flex will not be liable to you for any modification, suspension, or discontinuance of the Services, although if you are a Flex subscriber and Flex suspends or discontinues your subscription to the Services, Flex may, in its sole discretion, provide you with a credit, refund, discount or other form of consideration (for example, we may credit additional days of service to your account) in accordance with Section 4 below. However, if Flex terminates your account or suspends or discontinues your access to Services due to your violation of these Terms, then you will not be eligible for any such credit, refund, discount or other consideration.
3.7 Internet Access Charges. You are responsible for any costs you incur to access the internet to utilize the Services.
3.8 Contact Us. If we can be of help to you, please do not hesitate to us through our website at flex.lastcalltivia.com/contact-us/. It would be our pleasure to serve you. We aim to deliver first-class customer service, but in the unlikely event that a customer service representative provides information that is inconsistent with these Terms, please be aware that these Terms will control.
4. Subscriptions and Billing
4.1 Subscriptions. While we may offer Content from time to time for free, we charge a fee to access the Services that require a subscription. The Services may include different offerings. You can find the specific details regarding your subscription at any time by logging in on the Flex Site and clicking on Account Settings. You agree that your subscription is for use at one single commercial location only, unless the terms of your subscription authorize additional locations.
Because the Service is offered in multiple time zones, for consistency, a "day" for purposes of these Terms begins at 12:00 a.m. Eastern Time and ends at 11:59 p.m. Eastern Time of that same calendar day.
4.2 Billing. By providing a credit card or other payment method accepted by Flex ("Payment Method") for your subscription, you are expressly agreeing that we are authorized to charge you a periodic subscription fee on a recurring basis corresponding to the term of your subscription as provided herein, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of your subscription to the Payment Method. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in on the Flex Site and clicking on Account Settings and then the Change Subscription button. When you provide a Payment Method to access a subscription, including in connection with a free trial offer, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is a standard practice. We do not charge you in connection with this authorization hold. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize us to continue billing, and you will remain responsible for, any uncollected amounts.
As used in these Terms, "billing" shall indicate either a charge or debit, as applicable, against your Payment Method. The subscription fee will be billed at the beginning of your subscription or expiration of your free trial period, if any, whichever is earlier, and on each periodic renewal thereafter unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these Terms. To see the commencement date for your next renewal period, log in on the Flex Site, click on Account Settings and view the Subscription tab.
We automatically bill your Payment Method on the first calendar day on which your subscription commences. For subscribers whose subscription starts with a free trial, billing will only commence upon the expiration of the free trial and after subscriber has provided Flex with complete and accurate Payment Method information.
4.3 Billing Period. The interval of time between each payment due date shall be thirty days and be referred to herein as a "Billing Period." The Billing Period is determined by the date upon which you create your account with Flex. By creating an account, logging in and utilizing the Services, you authorize Flex to charge your Payment Method for the next Billing Period for the amount due therefore.
You acknowledge that the timing of when you are billed and the amount billed each Billing Period may vary, including for example due to promotional offers, gift card redemptions, credits applied, changes in your subscription, changes in your Payment Method, and changes in applicable taxes, and you authorize us to charge your Payment Method for the corresponding amounts.
If we offer you a promotion (e.g., a promotional price) for your subscription, the specific terms of the promotion will be disclosed during your sign-up or in other materials provided to you describing the particular promotion. In the case of promotional pricing, after your promotion ends, we will begin billing your Payment Method for your subscription at the regular price after your promotion ends unless you cancel prior to the end of your promotion or unless otherwise disclosed in communications made available to you.
Flex reserves the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next Billing Period following the date of the change. If Flex changes the subscription fee or other charges for your subscription, we will give you advance notice of these changes. However, we will not be able to notify you of changes in any applicable taxes.
Very rarely, if there are special circumstances where Flex determines it is appropriate (e.g., your subscription Service is unavailable for days due to technical difficulties), we may provide credits to affected subscribers. The amount and form of such credits, and the decision to provide them, are at Flex's sole and absolute discretion, and the provision of credits in one instance does not entitle anyone to credits in the future under similar or different circumstances.
4.4 Ongoing Subscription and Cancellation. Your subscription will continue in effect on a recurring basis corresponding to the term of your subscription unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to these Terms. You must cancel your subscription before your next renewal date in order to avoid the next billing. We will bill the periodic subscription fee plus any applicable taxes to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). If you cancel your subscription, cancellation will be effective as of the date of cancellation, however, there is no refund for any remaining days in your Billing Period, as you will have had access to Flex’s entire database for that month. You can cancel your subscription by logging into your Flex Account and following the instructions on your Account Settings page on the Flex Site or in the settings of our mobile application. If you pay for the Services through your account with a third party and want to cancel your subscription or manage your billing, you may need to do so through your account with such third party.
4.6 Unpaid Amounts. It is important that each subscriber honor the payment obligations to which the subscriber agreed. Accordingly, we reserve the right to retry billing your Payment Method after failed attempts (e.g., if your Payment Method is rejected). We also reserve the right to pursue any amounts you fail to pay in connection with your subscription. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys' fees, and arbitration or court costs.
4.7 Free Trials. On occasion, we may be authorized to offer free trials to a particular subscription for certain qualifying users. If we offer you a free trial, the specific terms of your free trial will be stated in the material describing the particular free trial or during your sign-up. Certain limitations may exist with respect to combining free trials with any other offers. Flex reserves the right to determine eligibility for free trials. To view the specific details regarding your free trial, if any, log in on the Flex Site and click on Account under your account name.
Once your free trial period ends, we will begin billing your Payment Method for your periodic subscription fees (plus any applicable taxes) and once you have provided Flex with valid Payment Method information, unless you cancel prior to the end of your free trial. For that reason, unless otherwise indicated in the free trial description, you may be asked to set up a valid Payment Method when redeeming a free trial offer.
You may cancel your subscription at any time as described in the "Ongoing Subscription and Cancellation" section of these Terms. We will continue to bill your Payment Method for your subscription on a recurring basis corresponding to the term of your subscription until you cancel or the account or applicable Service is otherwise suspended or discontinued pursuant to these Terms. To the extent subscriptions are offered in conjunction with purchases of, or payment for, third party products or services, you agree that Flex will not be liable to you for any claims arising out of or related to your purchase or use of such third party products or services. If you cancel your subscription during a free trial or while using a promotional code or other credits, cancellation may be effective immediately.
5. Accounts and Registration
You are responsible for all use of your account, including use of your account by your agents, employees, contractors, quests, or otherwise. By allowing others to access your account, you agree to be responsible for ensuring that they comply with these Terms and you agree to be responsible for their activity using the Services.
All registration information you submit must be accurate and updated. Please keep your password confidential. You will not have to reveal it to any Flex representative. Because you are responsible for all use of your account, including unauthorized use by any third party, please be very careful to guard the security of your password. Please notify us by telephone or email from our Contact Us page at felx.lastcalltrivia.com/contact-us/ if you suspect any unauthorized use of your account. Please also make sure to notify us if your registration information changes, in case we need to contact you.
You may find information on how to delete your Flex account by logging in on the Flex Site, going to the Account Settings page and the Subscription tab; click on “Change Subscription” and then click “Cancel Subscription.”
We reserve the right to immediately terminate or restrict your account or your use of the Services or access to Content at any time, without notice or liability, if Flex determines in its sole discretion that you have breached these Terms, violated any law, rule, or regulation, engaged in other inappropriate conduct, or for any other business reason. We also reserve the right to terminate your account or your use of the Services or access to Content if such use places an undue burden on our networks or servers.
6. Collection and Use of Personal Information
Flex, the Flex logo, Last Call Trivia, the Last Call Trivia logo, and all other Flex & Last Call Trivia marks, graphics, logos, scripts, and sounds are trademarks of Flex. None of the Flex trademarks may be copied, downloaded, or otherwise exploited, except as expressly provided herein. Flex & Last Call Trivia reserves all rights in all Flex and Last Call Trivia trademarks.
Flex is the owner of all copyrights in the Content and with regard to all copyrightable materials on the Flex website, and expressly reserves all such rights therein.
9. Unsolicited Submissions
It is Flex's policy not to accept unsolicited submissions, including trivia questions, articles, fan fiction, drawings, information, suggestions, ideas, or concepts. Flex's policy is to delete any such submission without reading it. Therefore, any similarity between an unsolicited submission and any elements in any Flex creative work, including trivia questions or within any Flex trivia questions, advertising artwork, copyrighted material, concept or other product would be purely coincidental.
10. Disclaimer of Warranties, Limitation of Liability and Indemnity
WHILE WE DO OUR BEST TO PROVIDE THE OPTIMAL PERFORMANCE OF THE SERVICES, YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, INCLUDING THE FLEX SITE, THE CONTENT, SERVICES, AND ANY OTHER MATERIALS CONTAINED ON OR PROVIDED THROUGH THE FLEX SITE, ARE PROVIDED "AS IS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, FLEX DOES NOT MAKE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATIBILITY OR NONINFRINGEMENT; OR THAT THE SERVICES WILL BE UNINTERRUPTED, FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, ACCURATE, ERROR FREE, OR RELIABLE.
IN NO EVENT SHALL FLEX OR ITS AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF THEIR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SUPPLIERS (INCLUDING DISTRIBUTORS AND CONTENT LICENSORS) (COLLECTIVELY, THE "FLEX PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SERVICES (INCLUDING ANY INFORMATION, PRODUCTS, OR SERVICES ADVERTISED IN, OBTAINED ON, OR PROVIDED THROUGH THE FLEX SITE), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE FLEX PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU TO US, IF ANY, FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO USE OF THE SERVICE OR $50 (WHICHEVER IS LESS).
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE FLEX PARTIES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS), AND OTHER LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OR ALLEGED BREACH OF THESE TERMS OR YOUR USE OF THE SERVICES (INCLUDING YOUR USE OF THE CONTENT). FLEX RESERVES THE RIGHT, AT OUR OWN EXPENSE, TO EMPLOY SEPARATE COUNSEL AND ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
11. General Information
11.1 Choice of Law and Forum. These Terms are governed by, and construed in accordance with, the laws of the State of Ohio without giving effect to principles of conflicts of law. You and Flex agree to submit any issue or claim arising out of this Agreement to the exclusive jurisdiction of the county courts located in Hamilton County, Ohio and hereby waive any right of removal to federal court, or otherwise.
11.2 No Waiver/Reliance. If you see other parties violating these Terms, we would appreciate it if you would let us know from out Contact Us page at dashboard.lastcalltrivia.com/contact-us. Precisely how Flex responds to a party that is violating these Terms will be determined after carefully analyzing all of the facts and circumstances of a particular case. You may not rely upon Flex's precise response with respect to one party or one situation as any indication of what Flex might do with respect to another party or another situation, even if the parties or situations appear to you to be similar. Similarly, if we fail to act in response to a violation of these Terms, you should not assume that we do not object to the violation or even that we are aware of it. In addition, you may not construe a waiver of any provision of these Terms with respect to any party as a waiver of that provision (or any other provision) with respect to either that party or any other party. Further, Flex's decision to delay exercising or enforcing any right or remedy under these Terms shall not constitute a waiver of such right or remedy. Even if Flex acts in a way that appears to you to be inconsistent with these Terms, Flex's action shall not be deemed a waiver or constructive amendment of these Terms.
From time to time, we may communicate with you about the Services and these Terms electronically (e.g., emails to your registered email address, notices on the Flex Site and other Access Points). You consent to receive electronic communications from Flex and further agree that any notices, agreements, disclosures, and other communications that we send to you electronically will satisfy any applicable legal notification requirements. We recommend that you keep a copy of any electronic communications we send to you for your records.