SmarDIY provides users with an automated Internet-based service to design and sell t-shirts and other custom products. By using SmarDIY and its services in any capacity, you have agreed to the terms and conditions of this Agreement and agree to use the site and service solely as provided in this Agreement. For additional clarification on these Terms of Service, please refer to SmarDIY’s Frequently Asked Questions section.
SMARDIY USER AGREEMENT: By violating this User Agreement in any capacity, you are subject to an immediate removal of your campaign(s), possible forfeit of profit(s), and potential suspension or termination of your account.
Arrangement between the Parties. Subject to the terms and conditions of this Agreement, during the Term, SmarDIY shall manufacture and deliver on behalf of Seller, the merchandise as specified and arranged by Seller pursuant to this Agreement.
Ordering and Delivery Procedure. The ordering procedure with respect to the sale of merchandise shall be as agreed upon by the parties as provided on the website of SmarDIY. Unless otherwise expressly agreed by the parties in writing, SmarDIY shall select the method of shipment of and the carrier for the merchandise. Any time quoted for delivery is an estimate only; provided, however, that SmarDIY shall use commercially reasonable efforts to deliver all merchandise on or before the requested delivery date. No delay in the shipment or delivery of any | merchandise relieves Seller of its obligations under this Agreement.
Price and Payment. Seller shall determine the price of the merchandise sold for each campaign, and SmarDIY shall retain from customer payment its determined base price as the cost of goods sold (including any additional expenses and fees Viral Style determines necessary to comply with the terms of this Agreement), and remit to Seller any amount in excess of such base price (“Seller Profits”).
BY CREATING A CAMPAIGN ON THE SMARDIY SITE: You agree to accept and abide by SmarDIY’s Terms of Service in their entirety. With respect to any trademarks, service marks, or copyrights that you have licensed from the owner thereof (the “Licensed Rights”), you agree to comply with any restrictions or conditions imposed on the use of the Licensed Rights.
You agree that you are the owner, or licensee, of all rights associated with any created or uploaded artwork or text, including but not limited to, the trademarks and copyrights that may be associated with said material. If you are not the owner, you agree to provide SmarDIY with evidence of the permission given to you by the owner.
You agree that the description and title of the campaign do not, either in and of themselves or in addition to the text and images featured in the created merchandise, infringe upon the rights of any third party.
You understand and agree that SmarDIY may, in its sole discretion, release your contact information to a third party that satisfactorily alleges, pursuant to SmarDIY’s Intellectual Property Complaint Policy below, unauthorized use of its intellectual property.
Upon receipt by SmarDIY of an allegation of infringement that comports with SmarDIY’s Intellectual Property Complaint Policy, in SmarDIY’s sole discretion, your campaign may be subject to immediate cancellation, possible forfeiture of any profits, and suspension or termination of your account with SmarDIY. You agree not to provide untrue information in your campaign including, but not limited to: the amount of product for sale, the origin of production of the product, or the intended recipient of profits.
You agree not to solicit potential buyers through information posted in your campaign other than the purchase of the primary item(s). This includes raffles, chances to win, and other representations of additional opportunities beyond the sale of the primary item being sold.
You agree to defend, indemnify, and hold SmarDIY and its affiliates harmless from and against any and all claims, damages, costs, and expenses, including attorneys’ fees, arising from or relating to your use of SmarDIY’s site and services, your violation of this Agreement, or your violation of any rights of another.
You agree that SmarDIY is not responsible for any consequential, indirect, or any special damages, including, but not limited to, lost profits, associated with any action taken by SmarDIY pursuant to this Agreement or your use of the SmarDIY service.
SmarDIY prohibits users from using the service to sell merchandise that infringes upon third party intellectual property rights (such as copyright, trademark, trade dress, and right of publicity).
SmarDIY will consider complaints of possible infringement only from parties that own, or have the exclusive right to exploit, said intellectual property. SmarDIY is not in a position to adjudicate disputes. If you believe a campaign contains content that is not authorized, upon receipt of the information enumerated below, SmarDIY will provide the campaign owner with your correspondence and contact information and direct the campaign owner to contact you within seven (7) days to resolve this dispute. If the campaign owner does not contact you, or if the issue is not resolved to your satisfaction, please let us know. In cases of an alleged infringement, in our sole discretion, SmarDIY may take down the campaign and refund all buyers, provided that the conditions, below, are satisfied.
If you believe that your intellectual property rights have been infringed upon by a SmarDIY user, please notify SmarDIY at firstname.lastname@example.org. You must include within your notification the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property that you allege is being infringed.
The URL to the SmarDIY campaign(s) used in connection with the sale of the allegedly infringing merchandise.
Identification of the copyright, trademark, or other rights that allegedly have been infringed, including proof of ownership (such as copies of existing trademark or copyright registrations).
Your full name, address, telephone number(s), and email address(es).
A statement that you have a good-faith belief that use of the material in the URL submitted is unauthorized by the rights owner, or its licensee, and such use amounts to infringement under federal or state law.
A statement, under penalty of perjury, that the information in the notification is complete and accurate and that you are authorized to act on behalf of the owner of the intellectual property or other right that is allegedly infringed.
If you believe that a claim of intellectual property infringement was filed by mistake or misidentification you may file a counter-notice. If you materially misrepresent in your counter-notice that your design is not infringing upon the intellectual property, you may be liable for damages to the intellectual property owner (including costs and attorney’s fees). Therefore, if you are unsure whether or not the material infringes on the intellectual property, please contact an attorney before filing the counter-notice. The counter-notice should be submitted to email@example.com and must include the following information:
Physical or Electronic Signature
Identification of the material and its location before it was removed, either by URL to the SmarDIY campaign(s) used in connection with the sale of the allegedly infringing merchandise or SmarDIY campaign number;
A statement under penalty of perjury that the claim of intellectual property infringement that led to the removal or blockage of access to material was filed by mistake or misidentification;
Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the U.S.); and your consent to accept service of process from the party who submitted the take-down notice or an agent of that party.
If you submit a counter-notice, a copy of the counter-notice may be sent to the complaining party informing the complaining party that SmarDIY may replace the removed material or cease disabling it in 10 business days. Unless the intellectual property owner files an action seeking a court order against you, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice.
If SmarDIY receives repeated notices that you have posted others’ intellectual property without permission, SmarDIY may terminate your account. SmarDIY has a system for keeping track of repeat violators of intellectual property rights of others, and determining when to suspend or terminate your account.
Generally, when content is removed that you posted because the intellectual property owner of that content sent us a complete legal request to do so, you will get an intellectual property strike. If you receive three intellectual property strikes within a one-year period, your account will be suspended for a period of one month. If you receive four intellectual property strikes within a one-year period, your account will be suspended for a period of three months. If you receive five intellectual property strikes within a one-year period, your account will be suspended for a period of six months. If you receive six intellectual property strikes within a one-year period, your account will be terminated.
If you submit a counter-notice in response to the intellectual property owner’s notice and that counter-notice is not answered by the intellectual property owner, or if the dispute leads to legal proceedings that result in a court finding that you have not infringed the owner’s intellectual property, SmarDIY will take away the strike that you were given for posting that content. Likewise, if the intellectual property owner retracts his or her notice, SmarDIY will take away the strike.
SmarDIY reserves the right to terminate accounts that act against the spirit of the Terms of Service, regardless of how many strikes are involved.
Sometimes, later campaigns copy earlier campaigns that contain original artwork on our site. Our policy is that every original image or design uploaded onto SmarDIY is protected against exact duplication, or use in a confusingly similar (trademark) or substantially similar (copyright) manner.
SmarDIY will accept complaints and notification of possible infringement from customers that claim ownership of said original content from an earlier campaign.
Once notified, SmarDIY, in its discretion, may remedy any alleged infringement by removing unauthorized content. Alternatively, SmarDIY may notify the allegedly infringing party and provide a warning. Instances of further infractions can lead to possible suspension or termination of the allegedly infringing party’s account.
For additional information regarding these policies, please reference SmarDIY’s Frequently Asked Questions section.
If you see a campaign containing your original image or design and would like to report it to SmarDIY, contact us at firstname.lastname@example.org with the following information:
The URL(s) used in connection with the sale of the allegedly infringing merchandise; and The URL(s) of your campaign and date of first use.
It is contemplated that the services and transactions described in this Agreement will not impose a withholding obligation upon SmarDIY under Section 1442 of the Internal Revenue Code, as amended (the “Code”). Notwithstanding the foregoing, in the event SmarDIY concludes that it has an obligation to withhold under Section 1442 of the Code (or other applicable law) with respect to Seller Profits, SmarDIY will withhold all applicable income tax from any payments or Seller Profits otherwise due to Seller.
Seller shall be solely responsible for payment of its own tax liabilities which may arise under the Agreement, and shall indemnify SmarDIY for any tax obligations, including for federal income tax withholding, which may arise as a result of this Agreement.
Seller shall indemnify, defend and hold harmless SmarDIY and SmarDIY’s affiliates, employees, officers, directors, and agents from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, costs and expenses (including attorneys’ fees) which arise out of or relate to (i) any content submitted or posted by Seller, (ii) Seller’s use of, or connection with, SmarDIY’s website, (iii) Seller’s violation of any of the terms of this Agreement or the Terms of Service, or (iv) Seller’s violation of any rights of a third party. To secure Seller’s prompt and complete payment and performance of any and all present and future indebtedness, obligations and liabilities of Seller to SmarDIY including with respect to any indemnification arising out of the Agreement or the Terms of Service, Seller hereby grants SmarDIY a security interest in all proceeds of the merchandise (including Seller Profits and insurance proceeds). SmarDIY shall be entitled to all applicable rights and remedies of a secured party under applicable law.
IN NO EVENT SHALL SMARDIY AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT OTHERWISE OWED TO SELLER AS SELLER PROFIT.
Terms of Agreement Prevail Over Seller’s Campaign Purchase Order. The parties intend for the express terms and conditions contained in this Agreement (including any schedules and exhibits hereto), and the pricing terms as set forth for each campaign, to exclusively govern and control each of the parties’ respective rights and obligations regarding the subject matter of this Agreement, and this Agreement is expressly limited to such terms and conditions. Any attempt to modify, supersede, supplement or otherwise alter this Agreement, will not modify this Agreement or be binding on the parties unless such terms have been fully approved in a signed writing by both parties.
Relationship of the Parties. Nothing in this Agreement or the Terms of Service creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
Entire Agreement. This Agreement (and the Terms of Service) constitute the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Assignment. Seller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of SmarDIY. SmarDIY may assign any of its rights or delegate any of its obligations hereunder in SMARDIY’S sole discretion.
If any term or provision of this Agreement (or the Terms of Service) is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement (or the Terms of Service) or invalidate or render unenforceable such term or provision in any other jurisdiction.
GOVERNING LAW; VENUE:
This Agreement and the Terms of Service shall be governed by the laws of the State of Arizona, without giving effect to the principles of conflicts of laws. Each party consents to the personal jurisdiction of the Federal, state, or local county courts located in Maricopa County, Arizona. Each party agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent to the address set forth above and/or by any means authorized by law.
Waiver of Jury Trial. Each party waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the Terms of Service.