Effective Date: July 25, 2007
Welcome to the Cotton-ink.com website,
which is located at Cotton-Ink.com (the "Website"). This Terms
of Service ("TOS") contain the terms and conditions that govern
your use of the Website and the Cotton-Ink.com Service (as defined below).
This TOS describes your rights and responsibilities and what you can
expect from the Cotton-Ink.com Service. Use of the Cotton-Ink.com Website
constitutes your acceptance of and agreement to this TOS.
Cotton-Ink.com 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 Cotton-Ink.com Website. 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 Website and the Cotton-Ink.com Service. Your continued use of
the Cotton-Ink.com Website following posting of a change notice or new
TOS on the Cotton-Ink.com Website will constitute binding acceptance
of the changes.
1. The Cotton-Ink.com Service.
Cotton-Ink.com
provides a number of Internet-based services through the Website (all
such services, collectively, the "Cotton-Ink.com Service").
One such service enables users to create customized products, including
without limitation, merchandise, books, compact discs, VCDs, and CD-ROMS
(collectively, "Products"). Cotton-Ink.com users may create
and purchase individual Products for their own use or sell Products
through their own page on the Website ("Shops"). Users who
would like to sell Products through Shops must enter into the Shopkeeper
Agreement. Cotton-Ink.com allows all users to browse the Website and
purchase Products from the Shops. Cotton-Ink.com may offer a number
of other services on its Website, including without limitation, message
boards, contests, and newsletters, which may change from time to time.
2. Use of the Web Site and Cotton-Ink.com
Service.
2.1
Eligibility. Cotton-Ink.com will only knowingly provide the Cotton-Ink.com
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 Cotton-Ink.com Service only under the supervision
of a parent or legal guardian who agrees to be bound by this TOS. The
Cotton-Ink.com Service is not intended for children under the age of
13.
2.2
Compliance with TOS and Applicable Law. You must comply with all of
the terms and conditions of this TOS, the applicable agreements and
policies referred to below, and all applicable laws, regulations and
rules when you use the Cotton-Ink.com Service and the Website.
2.3
Your License to Use the Web Site and the Cotton-Ink.com Service.
(a) Cotton-Ink.com solely and exclusively owns all intellectual property
and other rights, title and interest in and to the Cotton-Ink.com Service
and Website, except as expressly provided for in these TOS. For example
and without limitation, Cotton-Ink.com owns the trademarks Cotton-Ink.com;
the copyrights in and to the Website, and certain technology used in
providing the Cotton-Ink.com Service. You will not acquire any right,
title or interest therein under this TOS or otherwise to any intellectual
property owned by Cotton-Ink.com.
(b) Cotton-Ink.com grants you a limited revocable license to access
and use the Website and the Cotton-Ink.com Service for its intended
purposes, subject to your compliance with this TOS. This license does
not include the right to collect or use information contained on the
Website for purposes prohibited by Cotton-Ink.com; to compete with Cotton-Ink.com;
to create derivative works based on the content of the Website; or download
or copy the Website (other than page caching). If you use the Website
in a manner that exceeds the scope of this license or you breach this
TOS, Cotton-Ink.com may revoke the license granted to you.
(c) This Section 2.3 does not pertain to your intellectual property
rights. For information regarding your intellectual property rights,
please see Section 4.3.
2.4
Third-Party Services. Cotton-Ink.com may use third parties to provide
certain services accessible through the Website. Cotton-Ink.com does
not control those third parties or their services, and you agree that
Cotton-Ink.com will not be liable to you in any way for your use of
such services. These third parties may have their own terms of use and
other policies. You must comply with such terms and policies as well
as this TOS when you use those services. If any such terms or policies
conflict with Cotton-Ink.com's TOS, agreements or policies, you must
comply with Cotton-Ink.com's TOS, agreements or policies, as applicable.
3. General Rules.
3.1
Prohibited Use. You may only use the Cotton-Ink.com Service as expressly
permitted by Cotton-Ink.com. You may not cause harm to the Website or
the Cotton-Ink.com Service. Specifically, but not by way of limitation,
you may not: (i) interfere with the Cotton-Ink.com 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 Cotton-Ink.com Service; (iii) use a robot, spider or other device
or process to monitor the activity on or copy pages from the Website,
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 Cotton-Ink.com
Service; (v) impersonate another person or entity; (vi) use any meta
tags, search terms, key terms, or the like that contain Cotton-Ink.com's
name or trademarks; (vii) engage in any activity that interferes with
another user's ability to use or enjoy the Cotton-Ink.com Service; or
(viii) assist or encourage any third party in engaging in any activity
prohibited by this TOS.
3.2
Privacy Policy. By entering into this TOS, you agree to Cotton-Ink.com's
collection, use and disclosure of your personal information in accordance
with the Privacy Policy.
3.3
Ordering Policies. If If you purchase Products, you agree to do so in
accordance with Cotton-Ink.com's Ordering Policy and instructions on
the Website. Title to the Products you purchase passes to you when the
Products are delivered to the common carrier.
4. Create and Buy General Rules and
License.
4.1
Description. As part of the Cotton-Ink.com Service, Cotton-Ink.com offers
a service (the "Create and Buy Service") that allows you to
upload images, video, audio, data, and other content (collectively,
"Content") to the Website to create, produce and purchase
Products featuring the uploaded Content for your own use.
4.2
Delivery of Content. You will upload or deliver to Cotton-Ink.com all
Content that you want to use with the Create & Buy Service in accordance
with the applicable instructions on the Website and the Content Usage
Policy. Cotton-Ink.com may, in its sole and exclusive discretion, determine
whether any Content complies with such instructions and is satisfactory
for use with the Create & Buy Service.
4.3
Licensing Your Content to Cotton-Ink.com. You will retain ownership
of the Content that you upload to the Website. You hereby grant to Cotton-Ink.com
a royalty-free, worldwide, transferable, nonexclusive, right and license
to use such Content, in all media existing now or created in the future,
as Cotton-Ink.com deems necessary to enable you to use the Create &
Buy Service to create, produce and purchase Products. Cotton-Ink.com
may sublicense the rights that you grant it in this Section to a third
party subcontractor only for purposes of providing the Cotton-Ink.com
Service, processing your order, and producing and shipping your Products.
5. Reservation of Rights.
5.1
Monitoring. Cotton-Ink.com reserves the right, but does not assume the
obligation, to monitor transactions and communications that occur through
the Website. If Cotton-Ink.com determines, in its sole and absolute
discretion, that you or another Cotton-Ink.com user will breach a term
or condition of this TOS or that such transaction or communication is
inappropriate, Cotton-Ink.com 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.
5.2
Modification of the Service. Cotton-Ink.com reserves the right to modify
the organization, structure or "look and feel" of the Cotton-Ink.com
Service or the Website, and may change, suspend, or discontinue any
aspect of the Cotton-Ink.com Service at any time without any liability
to you or any third party. Cotton-Ink.com shall have complete discretion
over the features, functions, prices and other terms and conditions
on which the Cotton-Ink.com Service is offered to Cotton-Ink.com users.
6. 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 Cotton-Ink.com
permission to use such Submissions for marketing and other promotional
purposes, including the right to sublicense. You agree that Cotton-Ink.com
will have no obligation to keep any Submissions confidential. You will
not bring a claim against Cotton-Ink.com based on "moral rights"
or the likes arising from Cotton-Ink.com's use of a Submission. This
Section does not apply to your Content that you use in connection with
the Create & Buy Service or Shopkeeper Service.
7. Representations and Warranties.
7.1
Mutual Representations and Warranties. You represent and warrant to
Cotton-Ink.com and Cotton-Ink.com represents and warrants to you: (i)
that you or it has the full power and authority to enter into and perform
under this TOS, (ii) the execution and performance of your or its obligations
under this TOS does not constitute a breach of or conflict with any
other agreement or arrangement by which you or it is bound, and (iii)
this TOS is a legal, valid and binding obligation of the party entering
into this TOS, enforceable in accordance with its terms and conditions.
7.2
By You. You represent and warrant to Cotton-Ink.com that, in your use
of the Cotton-Ink.com 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 Cotton-Ink.com 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) Cotton-Ink.com 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 Cotton-Ink.com
incurs in providing the Cotton-Ink.com 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.
8. Disclaimers and Exclusions.
DISCLAIMER
OF WARRANTIES. Cotton-Ink.com PROVIDES THE WEBSITE AND Cotton-Ink.com
SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS.
Cotton-Ink.com DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, Cotton-Ink.com
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.
Cotton-Ink.com 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.
9. Limitation of Liability.
LIMITATION
OF LIABILITY. Cotton-Ink.com 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 Cotton-Ink.com SERVICE OR THIS TOS, BASED ON ANY CAUSE OF ACTION,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH
OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION
WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE
LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER
OF (i) THE AMOUNT PAID BY Cotton-Ink.com TO YOU DURING THE SIX MONTHS
IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR
(ii) $100.
10. Indemnification.
You
must indemnify and hold Cotton-Ink.com 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 provision
of this TOS through any act or omission. If you have to indemnify Cotton-Ink.com
under this Section, Cotton-Ink.com 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 Cotton-Ink.com's
express written permission.
11. Termination.
11.1
Termination. In its sole discretion, with or without notice to you,
Cotton-Ink.com may: (i) suspend, limit your access to or terminate your
use of the Website and/or the Cotton-Ink.com Service, (ii) suspend,
limit your access to or terminate your account, (iii) remove any of
your Content from Cotton-Ink.com's servers and directories and (iv)
prohibit you from using the Cotton-Ink.com Service and/or the Website.
11.2
Survival. Notwithstanding Section 11.1 above, this TOS will survive
indefinitely unless and until Cotton-Ink.com chooses to terminate this
TOS.
11.3
Effect of Termination. If you or Cotton-Ink.com terminates your use
of the Website or the Cotton-Ink.com Service, Cotton-Ink.com may delete
any Content or other materials relating to your use of the Cotton-Ink.com
Service on Cotton-Ink.com's servers or otherwise in its possession and
Cotton-Ink.com will have no liability to you or any third party for
doing so.
12. Notice.
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 Cotton-Ink.com, you must use the following addresses:
9333 Ethel Street, Cypress, California 90630, jpark@Cotton-Ink.com.
If Cotton-Ink.com provides notice to you, Cotton-Ink.com will use the
contact information provided by you to Cotton-Ink.com. 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.
13. Dispute Resolution.
All
disputes arising out of, relating to or connected with these TOS or
your use of any part of the Cotton-Ink.com Service will be exclusively
resolved under confidential binding arbitration held in Santa Clara
County, California, before and in accordance with the Rules of the American
Arbitration Association, by a sole arbitrator applying California 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. Any action to enforce an arbitrator's award will be brought
in a federal or state court located in Santa Clara County, California.
Each party hereby irrevocably submits to the personal jurisdiction of
the Federal and California State courts in Santa Clara County. Notwithstanding
anything to the contrary in this Section 13, Cotton-Ink.com 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.
14. Miscellaneous.
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 California without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of Cotton-Ink.com. This TOS (including all of the policies and other Agreements described in this TOS, which are 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 this 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 Cotton-Ink.com are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.
