Revised: May 14, 2008
Please understand that certain of the functions and feature of the Spoonflower web site as described below are not yet available or functional. However, we at Spoonflower would like you to be aware of future development plans and how we intend to handle your information.
Thank you for visiting the beta version of Spoonflower, a service of Spoonflower Inc. (“Spoonflower”), a Delaware corporation. Spoonflower provides its web site and services (“Site”) subject to the following terms of service (“Terms”).
By using the Site, uploading any data or images or ordering products, you are indicating your agreement to be bound by these terms and all revisions thereof. If you do not agree to these Terms, do not accept them and discontinue using and accessing the Site. These Terms are applicable to your use of the Site regardless of how you accessed the Site.
We may modify the Terms at any time. If the modifications to the Terms constitute a material change, in Spoonflower’s good faith reasonable judgment, Spoonflower will notify you via email or by posting a notice on the homepage of the Site. You should review these Terms from time to time so that you understand the terms and conditions of your use of the Site. If you do not agree to any amendment of these Terms, you must immediately stop using the Site, your continued use of the Site after any modification to these Terms constitutes acceptance of the amended Terms. If you ever have any questions about these Terms, please do not hesitate to contact us at help@spoonflower.com.
You must be 13 years of age or older to use the Site. If you are not at least 13 please discontinue your use of the Site and do not provide any personal or other information to Spoonflower on or through the Site. If you are between the ages of 13-18, please obtain the permission of your parent or legal guardian before using the Site.
If you have visited our Site and submitted your email address to our beta mailing list [or if you register on the Site], you will receive an email confirming the creation of a Spoonflower account. The email will contain your password. 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 Spoonflower 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. Spoonflower cannot be liable for any loss or damage arising from your failure to comply with this Section 2.
You represent and warrant that all contact and personal information provided to Spoonflower during the registration process and otherwise shall be accurate and complete. If there are any changes to your contact information, you shall promptly update your registration information with Spoonflower.
In using this Site, you agree to not:
a) upload, download, post, email or otherwise transmit any material — including but not limited to designs, text, data, photos, images, or any of these elements in combination (“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;
b) upload, download, post, email or otherwise transmit any Content that is 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.
c) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
d) 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;
e) 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;
f) upload, download, post, email or otherwise transmit false or misleading information;
g) 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.
h) 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;
i) disrupt or interfere with any other user’s enjoyment of the Site or affiliated or linked websites; or
j) collect or store personal information about any other use of the Site.
You understand that Spoonflower does not filter or examine Content, but that Spoonflower and its designees shall have the right (but not the obligation) in their sole discretion to review and to reject or remove any Content that is available via the Site. Upon placing any order through the Site, you acknowledge that Spoonflower may review it and the Content it contains for adherence to our guidelines and compliance with the terms and conditions set forth in these Terms. Without limiting the foregoing, Spponflower and its designees shall have the right to refuse to fulfill any order for any reason and to remove any Content that violates the Agreement or is otherwise objectionable to us. You acknowledge and agree that you are responsible for the creation and compilation of your Content, and that neither Spoonflower nor any other party involved with the production of any product incorporating such Content, including but not limited to fabric, assumes that responsibility. Spoonflower’s production of any product depicting your Content, including but not limited to fabric, does not indicate that Spoonflower accepts, approves of or endorses the Content, that the Content complies with applicable laws, or that you are absolved of any liability or harm arising from the use of the Content.
You hereby agree to waive any claims against Spoonflower and its affiliates, contractors, agents, third party service providers and employees (collectively, “Representatives”) for losses, damages and injuries which are based on or relate to communications or materials made available to the Site or posted on the Site, including other Content, by other users and persons other than Spoonflower or its Representatives.
Your privacy is very important to Spoonflower. Visitors to this Site should refer to our privacy policy [—LINK—] for information about how Spoonflower collects and uses personal information. By using the Site and accepting these Terms, you expressly consent to Spoonflower’s disclosure and use of your personal information (including using email to communicate with you) as described in the privacy policy, which is incorporated herein by reference.
Notwithstanding the foregoing, you acknowledge and agree that Spoonflower may preserve Content and may also disclose Content or information, including your personal information, 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 these Terms; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Spoonflower, its users and the public.
You acknowledge and agree that any data, materials or content, including but not limited to designs, text, photos, images, etc. or other material contained or distributed on or through the Site by Spoonflower, or its Representatives (“Site Content”) is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use, reproduce or distribute any Site Content without the authorization of the owner of such Site Content, except for uses permitted by law.
You retain all ownership rights to your Content. However, by submitting Content to Spoonflower you grant Spoonflower a nonexclusive, worldwide, transferable license to copy, crop, reproduce, publicly display, and distribute your Content. If your Content is uploaded as a design for fabric available on this Site, you grant to Spoonflower a nonexclusive, worldwide, transferable license to create derivative works of, modify, copy, sell, display and distribute the Content and fabrics created from or based on such Content.
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. All such Software and the Site shall remain the property of Spoonflower and 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.
Spoonflower respects the intellectual property rights of others. We ask our members to do the same. Spoonflower may terminate the accounts of users who it believes may be infringing the copyright or other intellectual property rights of others.
It is Spoonflower’s policy to respond expeditiously to claims of infringement. Spoonflower will promptly process and investigate notices of alleged copyright infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. Spoonflower will terminate access for users and account holders who are repeat infringers.
If you believe in good faith that your copyrighted material has been posted on the Site in violation of any applicable rights or licenses, and you want this material removed, you must provide the Site with a written communication that details the information listed in this section. Please also note that under Section 512(f) of the Copyright Act any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. You may wish to contact an attorney for legal assistance on this matter prior to submitting a notification.
To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following:
a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
b) a description of the copyrighted work(s) claimed to have been infringed;
c) an identification of the material that is claimed to be infringing, including a link to or description of where the claimed infringing Content is located on our Site so that Spoonflower is capable of finding and verifying its existence;
d) contact information, including identification of the copyright owner, your name, 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 owner, its agent, or the law; and
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 interest involved.
Send the written infringement notice and the materials above to our “Designated Agent” the following address:
Copyright Agent
Spoonflower, Inc.
Phone: 919-975-4862
Email: help@spoonflower.com
Upon receipt of notices complying, or substantially complying, with the DMCA and this section, Spoonflower will use its reasonable efforts to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and to remove or disable access to any reference or link to material or activity that is claimed to be infringing.
YOU REPRESENT AND WARRANT THAT YOU ARE THE OWNER OF THE CONTENT WHICH YOU SUBMIT AND THAT THE CONTENT DOES NOT INFRINGE UPON THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS (COPYRIGHTS AND TRADEMARKS) OR OTHER RIGHTS OF OTHERS. YOU ALSO REPRESENT THAT THERE ARE NO OUTSTANDING DISPUTES IN CONNECTION WITH THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN THE CONTENT OR ANY PARTS OF THE CONTENT.
You agree to defend, indemnify and hold Spoonflower and Spoonflower’s officers, directors, employees and other Representatives 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.
You agree that Spoonflower, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Site, and remove and discard any Content you may have contributed to the Site, at any time for any reason or no reason. Spoonflower may also in its sole discretion and at any time modify the Site, or any portion thereof, or discontinue providing the Site, or any part thereof, with or without notice. Further, you agree that Spoonflower shall not be liable to you or any third-party for any termination of your access to the Site.
The Site may provide, or third parties may provide, links to other websites or resources. Because Spoonflower has no control of such sites and resources, you acknowledge and agree that Spoonflower 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 Spoonflower 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.
Prices for products on Spoonflower are described on our website and are incorporated into these Terms by reference. All prices are in US dollars. Prices and products may change at Spoonflower’s discretion.
Title and risk of loss for all Products ordered by you shall pass to you on Spoonflower’s shipment to the shipping carrier. You shall be responsible for payment of all shipping, insurance and other transportation costs for shipment of Products ordered by you through the Site, unless otherwise stated on the Site or agreed by Spoonflower (such as through a special offer).
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, SPOONFLOWER AND ITS REPRESENTATIVES 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. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SPOONFLOWER OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
SPOONFLOWER DOES NOT MAKE ANY WARRANTY THAT (A) THE SITE, ITS CONTENT OR ANY PRODUCTS ORDERED THROUGH THE SITE, INCLUDIG FABRICS, 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 EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL SPOONFLOWER OR ITS REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE OR ANY PRODUCTS ORDERED THROUGH THE SITE. IN THE EVENT THAT YOU OBJECT TO ANY OF THESE TERMS OR BE DISSATISFIED WITH YOUR USE OF THE SITE, YOUR ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE YOUR USE OF THE SITE AND IN THE EVENT THAT ANY PRODUCTS OBTAINED THROUGH THE SITE ARE DEFECTIVE, YOUR REMEDY AND SPOONFLOWER’S SOLE OBLIGATION SHALL BE RETURN OF THE DEFECTIVE PRODUCTS AND, UPON DETERMINATION BY SPOONFLOWER OF SUCH DEFECTS, REFUND OF ANY AMOUNTS PAID BY YOU TO SPOONFLOWER FOR SUCH DEFECTIVE PRODUCTS. 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.
You agree that any claim or cause of action arising out of or related to your use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
If any provision of this Agreement 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 this Agreement shall in no way be affected or impaired.
Spoonflower shall have no liability for any failure or delay resulting from any condition beyond the reasonable control of Spoonflower, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
This Agreement will be governed by the laws of the State of North Carolina. Spoonflower may elect to resolve any controversy or claim arising out of or relating to these Terms or the Site by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Raleigh, NC, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Either party may seek any interim or preliminary relief from a court of competent jurisdiction in Raleigh, NC, necessary to protect the rights or the property of you or Spoonflower (or its Representatives), pending the completion of arbitration.