Imagekind Terms of Service
Effective Date: July 2017
These Terms provide that all disputes between you and Circle Graphics will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution and Arbitration for the details regarding your agreement to arbitrate any disputes with Circle Graphics.
Modifications and Severability
We may make changes to these Terms from time-to-time. We will notify you of any material changes by sending you an email, or posting a notice on the home page of the Website, or posting a notice in your account when you first login after we have made changes. If you receive notification of a change in our Terms, you must review the new Terms carefully to make sure you understand our practices and procedures. You may not be able to receive notices from us if your cookies are not set to accept and/or are disabled. Your continued use of the Website following posting of a change notice or new Terms on the Website will constitute binding acceptance of the changes. If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, then any such offending term or condition shall be deemed severable and shall not affect the validity and enforceability of any of the remaining Terms.
Our Website and Services
We provide a number of Internet-based services through the Website (all such services, collectively, the “Services”). One such service enables users to create and purchase customized products, including without limitation, framed and unframed canvas prints (collectively, "Products"). Users may create and purchase individual Products for their own use through the Services. We may offer a number of additional services on the Website, such as galleries, message boards, contests, and newsletters, which may change from time-to-time.
All pages within this Website and any material made available for download are the property of Circle Graphics, or its licensors or suppliers, as applicable. The Website is protected by United States and international copyright and trademark laws. The contents of the Website, including, without limitation, the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Website (collectively, "Content") may not be copied, distributed, modified, reproduced, published, or used, in whole or in part, except for purposes authorized or approved in these Terms or in writing by Circle Graphics. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, the Content, or other proprietary information (including images, text, page layout, or form) without our written consent.
Use of the Website and Service
We will only knowingly provide the Services 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 Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The Services are not intended for children under the age of 13.
You must comply with all of the terms and conditions of these Terms, the applicable agreements and policies referred to in these Terms, and all applicable laws, regulations, and rules when you use the Services and the Website.
You are prohibited from violating or attempting to violate the security of the Website, including, without limitation, (i) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (ii) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization; or (ii) accessing or using the Website or any portion thereof without authorization in violation of these Terms or in violation of applicable law. You may not collect or use information contained on the Website for the prohibited purposes, to compete with us, to create derivative works based on the Content of the Website, or download or copy the Website (other than page caching).
In the event access to the Website or a portion thereof is limited requiring an account with a username and password ("Protected Areas"), you agree to access Protected Areas using only your account as provided to you by Circle Graphics. You agree to protect the confidentiality of your username and password, and not to share or disclose your username or password to any third party. You agree that you are fully responsible for all activity occurring under your account. Your access to the Website may be restricted or revoked by us at any time with or without cause.
We may use third parties to provide certain services accessible through the Website. We do not control those third parties or their services, and you agree that we will not be liable to you in any way for your use of such services. These third parties may have their own terms of service and other policies. You must comply with such terms and policies as well as these Terms when you use those services. If any such terms or policies conflict with these Terms, or any other agreements or policies, you must comply with these Terms, and such other agreements and policies, as applicable.
You may purchase Products and Services on the Website. We accept all major credit cards issued by U.S. banks. If you purchase any Products or Services, you agree to do so in accordance with instructions provided on the Website, and agree to comply with any additional terms that may be provided. For your convenience, you will not be charged until your payment method is authorized and the order information is verified for accuracy. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. You represent and warrant that if you are making online payments that (i) any credit card, debit card, and bank account information you supply is true, correct, and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
You may use the Website and Services only as expressly permitted by Circle Graphics. You agree to not cause harm to the Website or Services. Specifically, but not by way of limitation, you may not: (i) interfere with the Website or Services 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 Services; (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 Services; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain our name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the Services; (viii) deep-link to any feature or content on the Website, bypass our security, robot exclusion headers, or other; or (viii) assist or encourage any third party in engaging in any activity prohibited by these Terms.
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.
The full list price is a price at which we have offered the product for sale; however, we may not have sold the item at that price. A strike-through price is a comparison price based on a product’s full list price or the price at which another retailer offers the same item (although we cannot know whether another retailer actually sold the item at the offered price).
Accuracy and Integrity of Information
Although we attempt to ensure the integrity and accurateness of this Website, we make no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Website, Services, or Content therein. It is possible that the Website could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Website by third parties. In the event that an inaccuracy arises, please inform us so that it can be corrected. Information contained on the Website may be changed or updated without notice. Additionally, we shall have no responsibility or liability for information or Content posted to the Website from any third party not affiliated with Circle Graphics.
We have made significant efforts to accurately display the images of our Products that appear on the Website and the Content. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
In the event a Product or Service is listed at an incorrect price due to typographical error or error in pricing information received from third parties, we shall have the right to refuse or cancel any orders placed for the Product or Service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall issue a credit to your credit or debit card account for the amount of the canceled order.
We reserve the right to modify the organization, structure, or "look and feel" of the Website or Services, and may change, suspend, or discontinue any aspect of the Website or Services at any time without any liability to you or any third party. We shall have complete and exclusive discretion over the features, functions, prices, and other terms and conditions on which the Website and Services are offered to you.
Printing Services, User Generated Content, and Submissions
As part of these Services, we may offers a service that allows you to upload images, photographs, graphic designs, and other content (collectively, "User Generated Content") to the Website to create, produce, and purchase Products featuring the uploaded Content for your own use ("Printing Service").
If you wish to use the Printing Service, you will upload or deliver to us all User Generated Content that you want to use with the service in accordance with the applicable instructions on the Website. We may, in our sole and exclusive discretion, determine whether any User Generated Content complies with such instructions and is satisfactory for use with the Printing Service.
You will retain ownership of the User Generated Content that you upload to the Website. You hereby grant to us a royalty-free, worldwide, transferable, non-exclusive, sublicensable, right and license to use such User Generated Content, in all media existing now or created in the future, as we deem necessary to enable you to fully use the Printing Service and for us to provide the Printing Service. We may sublicense the rights that you grant to us in this Section to a third party subcontractor for any appropriate purpose including, but not limited to, providing the Printing Service, processing your order, and producing and shipping your Products.
As a part of our Services, you may have the option of creating a gallery of your User Generated Content ("Gallery"). You are responsible for all the content in your Gallery. You understand and agree that we shall not be liable for any access to, use of or disclosure of any User Generated Content, including images, comments or other content in your Gallery. We may require you to change the URL for your Gallery.
You agree not to provide any User Generated Content, comments, ideas, suggestions, information, files, videos, images, or other materials that (i) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (ii) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets, or intellectual property rights of any person or entity, or (iii) contains or transmits a virus or any other harmful component. You represent and warrant to us that you have the legal right and authorization to provide all User Generated Content, comments, ideas, suggestions, information, files, videos, images, and any other materials to us for the purpose and use as set forth herein. You agree not to contact other users of the Website through unsolicited e-mail, telephone calls, mailings, or any other method of communication.
You grant Circle Graphics the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make. Circle Graphics and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third party.
All brand, product, and service names used on the Website which identify us or other third parties and their products are the proprietary marks of Circle Graphics and/or the relevant third parties. Nothing in these Terms shall be deemed to confer on any person any license or right on the part of Circle Graphics or any third party with respect to any such image, logo, or name. You shall not make any use of any Circle Graphics trademarks, logos, or trade dress without our prior express and written approval.
All User Generated Content and other materials are subject to review and examination by us. Any and all images are subject to all applicable laws, and any perceived violations of law will be reported by us to the applicable law enforcement authorities. We reserve the right in our sole and absolute discretion to refuse to process or post any User Generated Content and other materials that we deem objectionable.
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 us permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that we will have no obligation to keep any Submissions confidential. You will not bring a claim against us based on "moral rights" or the like arising from our use of a Submission.
Accessing some of our Services may require subscribing to a professional account. 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 or delete your account for any or no reason. 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.
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.
Except as provided 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.
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.
Payment of Earnings
By using our Services, you may generate earnings as described on our Website ("Earnings"). In order to receive your Earnings you must provide your taxpayer information to us as required by the IRS. If we do 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 that year, and all of such payments will be subject to a 30% backup withholding which will be submitted to the IRS.
If you have Earnings, we will pay your Earnings on a monthly basis. Within 45 calendar days following the end of each calendar month, we 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, we will hold your Earnings until the total amount due is at least $50.00 or until this Agreement is terminated.
If you accrue Earnings that are less than $50.00 for at least 365 days, we may send you payment of such accrued Earnings minus a $5 processing fee. If the amount of accrued Earnings is under $5 for at least 365 days, such amount will be used to cover our administrative costs and no payment shall be made to you.
If your account is terminated and you have less than $50 in accrued but unpaid Earnings then outstanding, we may charge you a $5 processing fee when sending you your final payment to cover its administrative costs.
We reserve the right, but do not assume the obligation, to monitor transactions and communications that occur through the Website. If we determine, in our sole and absolute discretion, that you or another user will breach these Terms or that such transaction or communication is inappropriate, we may cancel such transaction or take any other action to we deem necessary, without any liability to you or any third party.
All aspects of the relationship between you and any third party shall be solely between you and that third party. We do not and shall not have any direct dealings or contractual relationship with any third party.
All items purchased through this Website are made pursuant to a shipment contract. Title and risk of loss for all products ordered by you shall pass to you on our shipment to the shipping carrier. We reserve the right to ship partial orders.
For shipments to Canada, you authorize UPS Canada as chosen by Circle Graphics to act as your agent and to transact business with the Canada Border Services Agency ("CBSA") to clear any merchandise, account for duties and taxes, return merchandise, and prepare and submit refund claims on your behalf for any merchandise that is returned. You acknowledge and agree that the CBSA shall send any refund of duties and taxes that were paid on the returned merchandise to the broker, and that you will obtain the refund directly from Circle Graphics. You authorize the custom broker to endorse any refund check issued by the CBSA in your name, so that Circle Graphics may be reimbursed.
Any and all products available for purchase or license on the Website are subject to the export control laws and regulations of the United States and any other countries, as applicable. In purchasing any of the products, you agree not to dispose through export, re-export, trans-shipment, or otherwise, of any product purchased or licensed from or through Circle Graphics, except in accordance with all applicable export control laws and regulations.
Representations and Warranties
You represent and warrant to Circle Graphics (i) that you have the full power and authority to enter into and perform under these Terms, (ii) the execution and performance of your obligations under these Terms does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and (iii) these Terms are a legal, valid, and binding obligation of you, enforceable in accordance with its terms and conditions.
You represent and warrant to Circle Graphics that, in your use of the Website and Services, (i) you will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, or any other legal right of any third party; (ii) you will comply with all applicable laws, rules, and regulations; (iii) there are no claims, demands, or any form of litigation pending, or to the best of your knowledge, threatened against you with respect to any of the User Generated Content or Submissions; (iv) Circle Graphics will not be required to make any payments to any third party in connection with its use of the User Generated Content or Submissions; (v) the use of any instructions, formulae, recommendations, or the like contained in the User Generated Content or Submission will not cause injury to any third party; and (vi) the User Generated Content or Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
You agree to indemnify and hold us, Circle Graphics, and our representatives, agents, affiliates, directors, officers, managers, and shareholders (the "Parties") harmless from and against any damage, loss, and expense (including, without limitation, attorneys’ fees, expenses, and costs) incurred in connection with any third-party claim, demand, or action ("Claim") brought against any of the Parties (i) alleging that you have breached any provision of these Terms or any applicable laws, rules, or regulations through any act or omission, (ii) arising out of any User Generated Content you post or allow to be posted to the Website or any Submissions, or (iii) arising out of your use or access of the Website, or access by anyone accessing the Website using your account.
For any indemnification under this Section, Circle Graphics 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 Circle Graphics' express written permission.
Disclaimers and Exclusions
CIRCLE GRAPHICS PROVIDES THE WEBSITE AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CIRCLE GRAPHICS DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, SERVICES, OR ITS USE: (I) WILL BE UNINTERRUPTED; (II) WILL BE FREE OF INACCURACIES OR ERRORS; (III) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. CIRCLE GRAPHICS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. CIRCLE GRAPHICS DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE WEBSITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE, WEBSITE-RELATED SERVICES, AND LINKED WEBSITES. CIRCLE GRAPHICS DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD, AND DISTRIBUTED BY CIRCLE GRAPHICS ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
Limitation of Liability
CIRCLE GRAPHICS AND ANY THIRD PARTIES MENTIONED ON THE WEBSITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, SERVICES, CONTENT, OR INFORMATION CONTAINED WITHIN THE WEBSITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE WEBSITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF CIRCLE GRAPHICS TO YOU WITH RESPECT TO YOUR USE OF THIS WEBSITE IS $100 (ONE HUNDRED DOLLARS).
All notices required or permitted to be given under these Terms will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail; (ii) nationally-recognized overnight courier; or (iii) electronic mail. If you give notice to us, you must use the following addresses: Copyright Manager. Circle Graphics, Inc. 120 Ninth Avenue Longmont, Colorado 80501. If we provide notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (a) if by delivery by U.S. mail, seven (7) business days after dispatch, (b) if by nationally-recognized overnight courier, on the date receipt is confirmed by such courier service, or (c) 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.
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.
Copyright Infringement Claims
We disclaim any responsibility or liability for copyrighted materials posted on the Website or through our Services. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below:
We respect the intellectual property rights of others and expect our users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to our designated copyright agent.
Notices of Alleged Infringement for Content Made Available on the Website
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Website by sending us a notice ("Notice") complying with the following requirements.
- Identify the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Website where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
- Provide your full legal name and your electronic or physical signature.
The Notice should be delivered to the following designated copyright agent:
Circle Graphics, Inc.
120 Ninth Avenue
Longmont, Colorado 80501
By email: firstname.lastname@example.org
A poster of allegedly infringing material may make a counter notice pursuant to the DMCA. When we receive a counter notice, we may reinstate the material in question. To provide a counter notice to us, please provide the following information to our designated copyright agent.
- Identification of the material that has been removed or to which access has been disabled on the Website and the location at which the material appeared before it was removed or access to it was disabled.
- A statement as follows: "I hereby state under penalty of perjury that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled."
- Your name, address, telephone number and, if available, email address.
- A statement as follows: "I hereby consent to the jurisdiction in the state or federal courts located in Colorado, and I will accept service of process from the complaining party who notified us of the alleged infringement or an agent of such person."
- Provide your full legal name and your electronic or physical signature.
The Counter Notice should be delivered to the following designated copyright agent:
120 Ninth Avenue
Longmont, Colorado 80501
Dispute Resolution and Arbitration
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. If you have a concern about your purchase or any other issue, please call Circle Graphic's customer service. In the unlikely event that Circle Graphics is unable to resolve a complaint you may have to your satisfaction, then you and Circle Graphics each agree to be bound by these dispute resolution procedures.
You and Circle Graphics each agree that any dispute, claim, or controversy arising out of or relating in any way to your use of the Website, your ordering of Products or Services from Circle Graphics or its affiliates through the Website, by phone, or through third-party websites offering Circle Graphics Products or Services shall be determined by binding arbitration.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO BRING AN ACTION IN COURT OR BEFORE AN ADMINISTRATIVE AGENCY. ARBITRATION IS MORE INFORMAL THAN COURT OR ADMINISTRATIVE PROCEEDINGS. ARBITRATION USES A NEUTRAL ARBITRATOR TO DECIDE A DISPUTE INSTEAD OF A JUDGE OR JURY. AN ARBITRATOR'S AWARD IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES). AN ARBITRATOR IS ALSO BOUND BY THESE TERMS TO THE SAME EXTENT AS A COURT.
WE EACH ALSO AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS OF ANY NATURE OR IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THIS MEANS THAT YOU MAY NOT BRING A CLAIM ON BEHALF OF A CLASS OR ANY PERSON OTHER THAN YOURSELF. UNLESS OTHERWISE AGREED IN WRITING BY BOTH YOU AND CIRCLE GRAPHICS, AN ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT CONDUCT ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD RELIEF OTHER THAN ON AN INDIVIDUAL BASIS.
To begin an arbitration proceeding, you must send a demand to the American Arbitration Association ("AAA") describing your claim and serve a copy of the demand on our registered agent Copyright Manager. Circle Graphics, Inc. 120 Ninth Avenue Longmont, Colorado 8050. The arbitration will be conducted by the AAA under its Commercial Arbitration Rules and Mediation Procedures, and for disputes arising from or related to the purchase of products or services for personal or household use the AAA's Consumer Arbitration Rules will apply. AAA and the arbitrator will determine the appropriate rules that may apply as from time to time amended. The AAA's rules and the form for filing an arbitration claim are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Circle Graphics will reimburse those fees (but not any attorney's fees) for arbitration claims seeking less than $10,000 unless the arbitrator determines your claims are frivolous. Additionally, Circle Graphics will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed upon location. The arbitrator shall be bound by these Terms.
As an alternative to arbitration, you may elect to submit a claim to a small claims court if the claim qualifies, but any filing or other fees will be your responsibility.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial, unless such waiver is unenforceable. This means that any claim in court would be decided by a judge, not a jury.
We also each agree that you or Circle Graphics may bring suit in court to seek temporary provisional relief such as to enjoin infringement or other misuse of intellectual property rights.
THIS AGREEMENT EVIDENCES A TRANSACTION IN INTERSTATE COMMERCE, AND THUS THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL LAW GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE TERMS AND ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE AND SERVICES, INCLUDING, BUT NOT LIMITED TO, PRODUCTS AND SERVICES ORDERED OR PURCHASED THROUGH THE WEBSITE. IN THE ABSENCE OF APPLICABLE FEDERAL LAW, THEN THE INTERNAL LAWS OF THE STATE OF COLORADO (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES) WILL GOVERN.