Terms of Service

Effective Date: March 1, 2009

Welcome to our website, which is located at customizemydesigns.com (the "Website"). This Terms of Service ("TOS") contain the terms and conditions that govern your use of the Website and our Services (as defined below). This TOS describes your rights and responsibilities and what you can expect from our Services. Use of our Website constitutes your acceptance of and agreement to this TOS.

We reserve 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 our Website. In the event of substantive changes to this TOS, you may be notified by email if you have a user account with us. If any modification is unacceptable to you, your only recourse is to not use the Website and our Services. Your continued use of our Website following posting of a change notice or new TOS on the Website will constitute binding acceptance of the changes.

1. Our Service.

We provide a number of Internet-based services through the Website (all such services, collectively, our Services"). One such service enables users to create customized products, including without limitation, merchandise, apparel (collectively, "Products"). Our users may create and purchase individual Products for their own use. We allow all users to browse the Website and purchase Products from us. We 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 Services.

2.1 Eligibility. We will only knowingly provide our 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 our Services only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. Our Services are 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 our Services and the Website.

2.3 Your License to Use the Web Site and Our Services.
(a) We solely and exclusively own all intellectual property and other rights, title and interest in and to our Services and Website, except as expressly provided for in these TOS.
(b) We grant you a limited revocable license to access and use the Website and our Services for there 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 us; 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). If you use the Website in a manner that exceeds the scope of this license or you breach this TOS, we 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. 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 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 our TOS, agreements or policies, you must comply with our TOS, agreements or policies, as applicable.

3. General Rules.

3.1 Prohibited Use. You may only use our Services as expressly permitted by us. You may not cause harm to the Website or our Services. Specifically, but not by way of limitation, you may not: (i) interfere with our 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 our 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 our 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 our Services; 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 our collection, use and disclosure of your personal information in accordance with the Privacy Policy.

3.3 Ordering Policies. If you purchase Products, you agree to do so in accordance with CafePress.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 Your Own General Rules and License.

4.1 Description. As part of our Services, We offer a service (the "Create Your Own Service") that allows you to upload images 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 us all Content that you want to use with the Create Your Own Service in accordance with the applicable instructions on the Website and the Content Usage Policy. We may, in our sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the Create Your Own Service.

4.3 Licensing Your Content to us. You will retain ownership of the Content that you upload to the Website. You hereby grant to us a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as we deem necessary to enable you to use the Create Your Own Service to create, produce and purchase Products. We may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of providing our Services, processing your order, and producing and shipping your Products.

5. Reservation of Rights.

5.1 Monitoring. We reserve the right, but does 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 a term or condition of this TOS or that such transaction or communication is inappropriate, we 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. We reserve the right to modify the organization, structure or "look and feel" of our Services or the Website, and may change, suspend, or discontinue any aspect of our Services at any time without any liability to you or any third party. We shall have complete discretion over the features, functions, prices and other terms and conditions on which our Services are offered to our users.

6. Submissions.

When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, 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 likes arising from our use of a Submission. This Section does not apply to your Content that you use in connection with the Create Your Own.

7. Representations and Warranties.

7.1 Mutual Representations and Warranties. You represent and warrant to us and we 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 us that, in your use of our Services, 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 us 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) we 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 we incur in providing the our Services; (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. WE PROVIDE THE WEBSITE AND OUR SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, OUR SERVICES OR THEIR 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. WE MAKE 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. WE 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 OUR SERVICES 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 US 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 us and our employees, representatives, agents, affiliates, directors, officers, and managers (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 us under this Section, we 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 our express written permission.

11. Termination.

11.1 Termination. In its sole discretion, with or without notice to you, we may: (i) suspend, limit your access to or terminate your use of the Website and/or our Services, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from our servers and directories and (iv) prohibit you from using our Services and/or the Website.

11.2 Survival. Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until we choose to terminate this TOS.

11.3 Effect of Termination. If you or CustomizeMyDesigns.Com terminate your use of the Website or our Services, we may delete any Content or other materials relating to your use of our Services on our servers or otherwise in its possession and we 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 us, you must use the following addresses: PO Box 7775 #7269, San Francisco, California, 94120-7775. 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: (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 our Services 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, we 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 us. 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 CustomizeMyDesigns.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.