Imagekind Terms of Service
Effective Date: March 2015
1. Acceptance of Terms
BY CONTINUING TO USE THE Imagekind SITE, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND ALL REVISIONS THEREOF.
Imagekind will only knowingly provide use 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 Imagekind only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Imagekind is not intended for children under the age of 13.
3. User Account, Password, and Security
Upon creating a user account, you agree to provide Imagekind with a current email address and to update such information immediately upon any changes. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any content. You will also need to create a password and will receive an account designation upon completing the Site's registration process.
You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Imagekind of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Imagekind cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3.
4. User Conduct
In using this Site, you agree to not:
- upload, download, post, email or otherwise transmit any materials including but not limited to text, data, sketches, photos, drawings, graphics, digital images, and related visual compositions or any of these elements in combination as a design for products available on this Site or otherwise ("Content") that are unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another's rights including but not limited to rights of celebrity, privacy and intellectual property.
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- upload, download, post, email or otherwise transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By uploading or downloading any Content, you represent and warrant that you have the lawful right to reproduce and distribute such Content and that the Content complies with all applicable federal, state and local laws, regulations and ordinances;
- upload, download, post, email or otherwise transmit any Content that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;
- upload, download, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation;
- upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- upload, download, post, email or otherwise transmit false or misleading information;
- disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers, or networks connected to or accessible through the Site or affiliated or linked websites.
- access, tamper with or use non-public areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution;
- disrupt or interfere with any other user's enjoyment of the Site or affiliated or linked websites.
- frame or link to the Site except as permitted in writing by Imagekind;
Upon uploading Content, you acknowledge that Imagekind may review your Content for adherence to our guidelines and compliance with the Terms set forth in this agreement. Without limiting the foregoing, Imagekind and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable to Imagekind. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content, created by or submitted to, Imagekind. You acknowledge and agree that you are responsible for the creation and compilation of your Content, and that neither Imagekind nor any other party involved with the production of any product incorporating such Content, assumes that responsibility. Imagekind's production of any product depicting your Content does not indicate that Imagekind approves of the Content, that the Content obeys all applicable laws, or that you are absolved of any liability or harm arising from the use of the Content.
You acknowledge and agree that Imagekind may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Agreement; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Imagekind, its users and the public.
You understand that the technical processing and operation of the Site, including your Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connection networks or devices.
No earnings will be owed or paid on the sale of any items containing an image which is in violation of any of the provisions of these Terms, including but not limited to no earnings on any images that contain objectionable content or are posted in violation of the intellectual property, privacy or celebrity rights of any person or entity.
You acknowledge and agree that you will use this Site and any products ordered on this Site at all times in accordance with all applicable United States federal, state and local laws, statutes, regulations and ordinances and will not take any action that harms or violates the rights of any person or entity.
Prices for products on Imagekind are described on our Site and incorporated into these Terms by reference. All prices are in US Dollars. Prices and products may change at Imagekind’s discretion.
All items purchased through Imagekind are made pursuant to a shipment contract. Title and risk of loss for all products ordered by you shall pass to you on Imagekind’s shipment to the shipping carrier. We reserve the right to ship partial orders (at no additional cost to you).
7. Individual Galleries
If you become a member, you will have the option to limit access to your Gallery of Content (“Gallery”) by selecting the public, private, or locked option. If you enable the private option for your gallery, you will receive a personal URL to serve as a link to your Gallery. If you select the locked option, only those that are given the assigned password will have access to your Gallery. If you select the public option, Imagekind then reviews your Content for appropriateness and artistic value to insure a high level of quality in our public store. If your content is accepted, anyone will be able to search, access, and review all of the Content in your Gallery, and order products containing the Content. Imagekind RESERVES THE RIGHT TO REFUSE PUBLIC STATUS TO ANY MEMBER. If you do not want the public to be able to access all of your images, you should enable private or locked option feature. Visitors will get full access to your images only if they enter your unique URL or password. You are responsible for, and will have the ability to edit and delete, all Content in your Gallery. We reserve the right to require you to change the URL for your Gallery. You understand and agree that Imagekind shall not be liable for any access to, use of or disclosure of any image, comment or other content in your Gallery.
8. Professional Account
(a) Subscription Fee. By subscribing to a Professional Account, you agree to pay the subscription fee identified at the time you subscribe. Your subscription will remain in effect from the date on which you subscribe until the end of the subscription period you have selected. Your subscription will renew automatically at the end of the subscription period, unless you cancel it before the end of your current subscription period. Subscription “periods” may be either month to month or for longer periods of time.
We reserve the right at any time to change the subscription fee for the Professional Account. In no event will you be charged any new or different fee unless we obtain your prior agreement to pay such fee. If you do not consent to such fee, however, you will no longer receive the Professional Account.
(b) Refund Policy. Except as described below, we will not refund any fees paid for subscription to a Professional Account. It is your responsibility to determine if the Professional Account meets your needs before you subscribe.
(c) Cancellation. You may cancel your subscription for a Professional Account at any time. If you do cancel, you will not receive a refund of your subscription fee for the current subscription period (but you will continue to have access to the Professional Account for the remainder of your subscription period). If you would like to renew your subscription after cancellation, you will need to subscribe again after the original expiration date of your subscription.
(d) Termination of Professional Account. We may elect, in our sole discretion, to terminate the Professional Account Service. If we do, we will refund to you a pro rata portion (based on the time remaining in your subscription period) of your subscription fee for the period in which such termination occurs. The foregoing applies only to circumstances in which we terminate the Professional Account Service for all of our registered members and shall not entitle you to a refund if we terminate your individual access to the Professional Account Service because you have failed to comply with any of these Terms.
9. Payment of Earnings
Earnings for products on Imagekind (“Earnings”) are described on our website and are incorporated into this Agreement by reference. All prices are in US dollars. Prices and products may change at Imagekind's discretion.
(a) Tax Information. In order to receive your Earnings you must provide your taxpayer information to Imagekind as required by the IRS. If Imagekind does not have your current taxpayer information on file for a particular year, payments due to you under this Agreement will not be made until December 31st of such year, and all of such payments will be subject to a 30% backup withholding which will be submitted to the IRS.
(b) Payment Terms. Imagekind will pay your Earnings on a monthly basis. Within 45 days following the end of each calendar month, Imagekind will send you a check for Earnings you have earned for the relevant month. However, if the Earnings payable to you for any month are less than $50.00, Imagekind will hold your Earnings until the total amount due is at least $50.00 or until this Agreement is terminated.
(d) Processing Fees. If Imagekind owes you accrued Earnings that are less than $50.00 for at least 365 days, then Imagekind may send you payment of such accrued Commissions minus a $5 processing fee. If the amount of accrued Commissions is under $5 for at least 365 days, such amount will be used to cover Imagekind's administrative costs and no payment will be made to you.
(e) Termination Fees. If you or Imagekind terminate your Account, and you have less than $50 in accrued but unpaid Earnings then outstanding, Imagekind may charge you a $5 processing fee when sending you your final payment to cover its administrative costs.
11. Proprietary Rights
You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, etc. or other material contained or distributed on or through the Site, by Imagekind, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use or distribute any Content received through the site without the authorization of the Content owner, except for uses permitted by law. You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site including code and software, in violation of applicable copyright and other intellectual property laws.
You will retain ownership of the Content you upload to Imagekind. You hereby grant to Imagekind a royalty free, worldwide, transferable, nonexclusive, right and license to use such Content as Imagekind deems necessary to enable you to use the Imagekind service to create, produce, crop, publically display, sell, distribute and purchase Products for so long as your Content remains uploaded to the site. Imagekind may sublicense the rights that you grant it in this section to a third party subcontractor for the purposes of producing your Products and providing the Imagekind service. Upon cancellation of your account and removal of your images, Imagekind shall no longer maintain these rights. Our right to reproduce your images for sale to the public is completely contingent on your participation on our website. When you delete your account, which you may do for any reason and without penalty, we no longer have said rights to reproduce and sell artwork on your behalf.
You acknowledge and agree that the Site and any software used in connection with the Site ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Site or the Software, in whole or in part.
The intellectual property rights in or relating to the content of any postings to your account which you submit (excluding the Content) will automatically be deemed to be assigned by you to Imagekind upon their submission to Imagekind, and Imagekind shall be entitled to use, edit and publish the information which may include information about your gallery, your biography, comments or any other information which you have provided. Imagekind does reserve the right in its sole discretion to delete artwork, text, comments and other imagery which it deems to be vulgar or otherwise inappropriate for the site.
All brand, product and service names used in this Site which identify Imagekind or third parties and their products are proprietary marks of Imagekind, Inc. and/or the relevant third parties. Nothing in this service shall be deemed to confer on any person any license or right on the part of Imagekind or any third party with respect to any such image, logo or name. You shall not make any use of any Imagekind trademarks, logos, or trade dress without prior express and written approval by Imagekind.
13. Copyright and Intellectual Property Policy
Imagekind respects the intellectual property rights of others and we require our users to do the same. We may terminate the accounts of users who appear to infringe the copyright or other intellectual property rights of others. In appropriate circumstances and at our discretion, we may require removal of the user's content from our site and, if the user continues to infringe on your rights (or infringes the rights of others) terminate the user's access to our services.
If you believe that your Content has been copied in a way that constitutes copyright and/or trademark infringement, please notify Imagekind's Copyright Agent, and provide the following information ("Notice"):
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright/trademark interest;
b) a description of the copyrighted work and/or trademark claimed to have been infringed;
c) a description of where the claimed infringing Content is located on our Site;
d) your address, telephone number, and email address
e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright/trademark owner, its agent, or the law;
f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are authorized to act on behalf of the owner of the copyright/trademark interest involved.
Imagekind’s Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
10700 World Trade Blvd, Suite 102,
Raleigh, NC 27617
By email: email@example.com
14. WARRANTY OF OWNERSHIP AND NON-INFRINGEMENT
YOU REPRESENT AND WARRANT THAT (I) YOU ARE THE OWNER OF THE CONTENT OR THAT THE CONTENT IS IN THE PUBLIC DOMAIN; (II) YOU HAVE THE LEGAL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO GRANT THE LICENSE; (III) YOU HAVE NO KNOWLEDGE AS TO ANY THIRD-PARTY CLAIMS REGARDING THE INTELLECTUAL PROPERTY OR OTHER RIGHTS IN THE CONTENT WHICH CLAIMS WOULD INTEFERE WITH THE RIGHTS GRANTED UNDER THIS AGREEMENT; (IV) THE CONTENT DOES NOT INFRINGE THE RIGHTS OF PRIVACY, CELEBRITY, MORAL OR OTHER RIGHTS OF ANY THIRD PARTY; (V) THE WORK IS NOT DEFAMATORY OR OBSCENCE; (VI) THE CONENT DOES NOT CONTAIN ILLEGAL MATERIAL; (VII) THE CONENT DOES NOT CONTAIN MATERIAL WHICH DENIGRATES OR ATTACKS ANY PERSON BASED ON RACE, RELIGION, NATIONAL ORIGION, SEXUAL ORIENTATION, OR THE LIKE (“DISCRIMINATORY CONTENT”); (VIII) Imagekind MAY LEGALLY MANUFACTURE AND SELL PRODUCTS INCORPORATING THE CONTENT WITHOUT THE INFRINGEMENT OF ANY RIGHTS OF ANY THIRD PARTY AND WITHOUT THE OBLIGATION TO MAKE ANY PAYMENTS TO OR OBTAIN ANY PERMISSION FROM ANY THIRD PARTY.
You agree to defend, indemnify and hold Imagekind and Imagekind's officers, directors, employees, agents and licensors harmless from all judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney's fees, expert witness fees, and costs of litigation arising out of or based on (a) content you submit, post to or transmit through the Site, (b) your use of the Site, (c) your connection to the Site, (d) your violation of these Terms or (e) your violation of any rights of a third party.
16. No Resale
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Site, use of the Site or access to the Site without Imagekind 's express written consent.
The Site may provide, or third parties may provide, links to other websites or resources. Because Imagekind has no control of such sites and resources, you acknowledge and agree that Imagekind is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Imagekind shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
19. Public Reputation
You acknowledge and agree that you will not use any product ordered from Imagekind.com in a way that would be damaging to Imagekind's public reputation or that of its employees, board members, shareholders, licensors, or solution partners. Additionally, you acknowledge that if you choose to display any product ordered from Imagekind in a public setting, including on the Internet, in a way which disparages Imagekind, Imagekind's board members, employees, shareholders or partners, Imagekind reserves the right to demand immediate return of the product Imagekind's sole and exclusive obligation and your sole and exclusive remedy shall be a full refund of all fees paid by you.
20. DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS SITE AND THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE THROUGH IT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Imagekind AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Imagekind DOES NOT MAKE ANY WARRANTY THAT (A) THE SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, OR (B) THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, OR (D) THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU AGREE THAT Imagekind SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU IN CONNECTION WITH THE SITE OR ANY CONTENT CONTAINED THEREIN INCLUDING BUT NOT LIMITED TO LOSS OF DATA FROM DELAYS, NONDELIVERIES OF CONTENT OR EMAIL, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OF CONTENT OR EMAIL, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS CAUSED BY THE NEGLIGENCE OF Imagekind, ITS AFFILIATES, ITS LICENSORS, OR A USER'S OWN ERRORS AND/OR OMISSIONS.
YOU EXPRESSLY AGREE THAT USE OF THIS SERVICE, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR BUSINESS, YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, DATA AND/OR SOFTWARE.
YOU ACKNOWLEDGE THAT Imagekind DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THIS SERVICE. EXCEPT AS OTHERWISE AGREED IN WRITING, Imagekind AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THIS SITE.
YOU ACKNOWLEDGE THAT Imagekind MAKES NO WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THIS SITE WILL BE MAINTAINED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Imagekind OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
21. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL Imagekind OR ITS PARENTS, SUBSIDIARIES, OFFICERS, EMPLOYEES, AFFILIATES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, TRANSMITTING, OR DISTRIBUTING Imagekind OR RELATED SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Imagekind HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR (E) ANY OTHER MATTER RELATING TO THE SITE. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UPS OF YOUR CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
These Terms shall be governed by and construed in accordance with the laws of the state of Washington, without resort to its conflict of law provisions. Any dispute with regard to this Agreement shall be submitted to one arbitrator for arbitration in King County, Washington in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The award rendered by the arbitrator shall be binding as between the parties and judgment on such award shall be entered in any court having jurisdiction thereof. The Arbitrator may award attorney's fees and costs to the prevailing party.
No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms. Imagekind may assign its rights and responsibilities hereunder without notice to you. The failure of a party to exercise or enforce any right or provision of these Terms will not constitute a waiver of the right or provision. Imagekind's failure to act with respect to a breach by you or others does not waive Imagekind's right to act with respect to subsequent or similar breaches. If any provision of these Terms is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of these Terms shall in no way be affected or impaired. These Terms constitutes the entire agreement between you and Imagekind, and supersedes all other communications, written or oral, with regard to the services provided by Imagekind.