Terms of ServiceEffective: October 13, 2006 Welcome to the CafePress Developers Network website located at www.cafepressdn.com. This Terms of Service ("TOS") contains the terms and conditions that govern your use of the Website and the CafePress Developers Network Service, describes your rights and responsibilities and what you can expect from the CafePress Developers Network Service. This is a legal agreement between you and CafePress.com, Inc. please carefully read all the terms and conditions in this TOS. By using the Website you are expressly agreeing to this TOS and the CafePress Developers Network Privacy Policy. If you do not agree with this TOS your sole recourse is not to use the Website or the CafePress Developers Network Service. CafePress.com reserves 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 the Website. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Website and the CafePress Developers Network Service. Your continued use of the Website following posting of a change notice or new TOS on the Website will constitute binding acceptance of the changes. Please note that this is a beta version of the Website and the CafePress Developers Network Service. The Website and the CafePress Developers Network Service are still in development and are experimental in nature. Accordingly, the entire Website, aspects of the Website, and the CafePress Developers Network Service may disappear without warning, have glitches/bugs or may perform erratically. Neither the Website nor the CafePress Developers Network Service have been fully tested, and CafePress.com does not represent or warrant that the Website or the CafePress Developers Network Service are reliable, accurate, complete, or otherwise valid. 1. The CafePress Developers Network Service. CafePress Developers Network provides access to Application Programming Interfaces ("APIs") and the Spotlight Tools ("Spotlight Tools") created by CafePress.com, allows users to share the web-based tools they have developed ("Third Party Tools" or "Community Created Tools"), and provides other services on the Website (collectively the "CafePress Developers Network Service"). Users of the CafePress Developers Network Service who would like to access and use the CafePress.com APIs must enter into the applicable API agreement. 2. Use of the Website and CafePress Developers Network Service. 2.1 Eligibility. CafePress.com will only knowingly provide the CafePress Developers Network Service 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 CafePress Developers Network Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The CafePress Developers Network Service is 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 set forth in this TOS, the applicable agreements and policies set forth on the Website, and all applicable laws, regulations and rules when you use the CafePress Developers Network Service and the Website. 2.3 Your License to Use the Website and the CafePress Developers Network Service. (a) CafePress.com solely and exclusively owns all intellectual property and other proprietary rights, title and interest in and to the CafePress Developers Network Service and the Website, except as expressly provided for in this TOS. For example and without limitation, CafePress.com owns the trademarks CAFEPRESS®, and CAFEPRESS.COM®; the copyrights in and to the Website, the CafePress.com APIs, and certain technology used in providing the CafePress Developers Network Service. You will not acquire any right, title or interest therein under this TOS or otherwise. (b) CafePress.com grants you a limited revocable license to access and use the Website, the Spotlight Tools and the CafePress Developers Network Service for its 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 CafePress.com; to compete with CafePress.com; to create derivative works based on the content of the Website; or to 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 breaches this TOS, CafePress.com may revoke the license granted to you. 2.4 Third Party Services. CafePress.com may use third parties to provide certain services accessible through the Website and the CafePress Developers Network Service. CafePress.com does not control such third parties or their services, and you agree that CafePress.com 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 with this TOS when you use third party services. If any such terms or policies conflict with CafePress.com's TOS, agreements or policies, you must comply with CafePress.com's TOS, agreements or policies, as applicable. 2.5 Third Party Tools. Links to Third Party Tools, applications, and websites listed on the Community Created Tools sections of the Website are not tools, applications, websites, products, and/or services developed or offered by CafePress.com. CafePress.com does not endorse, express or implied, the Third Party Tools, any third party websites associated with them, and/or the information, products, or services contained therein. CafePress.com makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the Third Party Tools, third party websites, or information contained therein. Links to Third Party Tools and third party websites posted on the Website are solely for the convenience of users of the CafePress Developers Network Service and the Website. For the avoidance of doubt Third Party Tools does not include the Spotlight Tools. 3. General Rules. 3.1 Prohibited Use. You may only use the CafePress Developers Network Service as expressly permitted by CafePress.com. You may not cause harm to the Website or the CafePress Developers Network Service. Specifically, but not by way of limitation, you may not: (i) interfere with the CafePress Developers Network Service 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 CafePress Developers Network Service; (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 CafePress Developers Network Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, domain names, trademarks, or the like that contain CafePress.com's name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the CafePress Developers Network Service; (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS; (ix) use the CafePress Developers Network Service in a manner intended as its primary purpose to collect personally identifiable information and/or email addresses of third parties; or (x) use the CafePress Developers Network Service to send or facilitate the sending of unsolicited commercial communications. 3.2 Third Party Tools. Specifically, but not by way of limitation, you may not post any Third Party Tools: (a) that contain code or content for which you do not have sufficient rights to use or allow others to use; (b) that infringe any patent, trademark, trade secret, copyright or other proprietary or intellectual property rights of a another party; (c) that is unlawful; (d) that contains malicious software; or (d) that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment. 3.3 Privacy Policy. By entering into these TOS, you agree to CafePress.com's collection, use, and disclosure of your personal information in accordance with the CafePress Developers Network Privacy Policy. 4. General Rules and License to CafePress.com. 4.1 Description. As part of the CafePress Developers Network Service, CafePress.com offers a service that allows you to post comments and ideas, and/or post links to your website, Third Party Tools, or other content (collectively "Content") to the Website. 4.2 Delivery of Content. You will upload or deliver to CafePress.com all Content that you want to use with the CafePress Developers Network Service in accordance with the applicable instructions on the Website. CafePress.com may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the CafePress Developers Network Service. 5. Reservation of Rights. 5.1 Monitoring. CafePress.com reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If CafePress.com determines, in its 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, CafePress.com 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. CafePress.com may modify the CafePress Developers Network Service and the Website at any time with or without notice to you, and will incur no liability for doing so. 6. Submissions. By providing information (such as feedback, data, answers, questions, comments, suggestions, plans, ideas or the like) to CafePress.com via e-mail or through the Website, you agree that such information shall be non-confidential and non-proprietary, and that CafePress.com shall have unlimited rights to use (or not use), distribute (or not distribute), reproduce (or not reproduce), and disclose (or not disclose) such information as CafePress.com deems appropriate, without compensation or acknowledgment of its source. CafePress.com shall be free to use any ideas, concepts, know-how or techniques contained in information you provide CafePress.com via e-mail or through the Website, for any purpose whatsoever, including, but not limited to, developing, manufacturing or marketing products or services incorporating or otherwise based on such information. When you submit your ideas, regardless of what you may state in your submission: (1) your idea will automatically become the property of CafePress.com, without any compensation to you; (2) CafePress.com will have no obligation to return your idea to you or respond to you in any way; (3) CafePress.com will have no obligation to keep your idea confidential; and (4) CafePress.com may use your idea for any purpose whatsoever, including giving your idea to others. 7. Representations and Warranties. 7.1 Mutual Representations and Warranties. You represent and warrant to CafePress.com and CafePress.com 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 do 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 the terms and conditions set forth herein. 7.2 By You. You represent and warrant to CafePress.com that, in your use of the CafePress Developers Network Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, proprietary right, 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 CafePress.com 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) CafePress.com 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 CafePress.com incurs in providing the CafePress Developers Network Service; (iii) the use of any instructions, formulae, recommendations, computer code 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. CAFEPRESS.COM PROVIDES THE WEBSITE AND CAFEPRESS DEVELOPERS NETWORK SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH NO WARRANTIES WHATSOEVER. CAFEPRESS.COM DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, CAFEPRESS DEVELOPERS NETWORK SERVICE OR ITS 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. CAFEPRESS.COM EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. CAFEPRESS.COM DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE WEBSITE AND THE CAFEPRESS DEVELOPERS NETWORK SERVICE. CAFEPRESS.COM DISCLAIMS ANY WARRANTIES FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN THE WEBSITE AND THE CAFEPRESS DEVELOPERS NETWORK SERVICE. CAFEPRESS.COM DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF INFORMATION OR MATERIAL DISPLAYED IN THE COMMUNITY CREATED TOOLS SECTION OF THE WEBSITE. CAFEPRESS.COM DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL ON THE COMMUNITY CREATED TOOLS SECTION OF THE WEBSITE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE WEBSITE AND THE CAFEPRESS DEVELOPERS NETWORK SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION. 9. Limitation of Liability. CAFEPRESS.COM WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE CAFEPRESS DEVELOPERS NETWORK SERVICE OR THE WEBSITE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. Indemnification. You must indemnify and hold CafePress.com and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (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 CafePress.com alleging that you have breached any provision of this TOS through any act or omission and/or allegations based upon your use of the Website or the Community Developers Network Service. If you have to indemnify CafePress.com under this Section, CafePress.com will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. CafePress.com will notify you of the Claim. You may not settle or otherwise resolve any Claim without CafePress.com's express written permission. 11. Termination. 10.1 Termination. CafePress.com may suspend or terminate your use of the Website or CafePress Developers Network Service at any time with or without notice to you. 10.2 Survival. Notwithstanding Section 10.1 above, sections 4, 6, 7, 9, 10.2, 11, 12, 13, and 15 will survive indefinitely unless and until CafePress.com chooses to terminate them. 10.3 Effect of Termination. If you or CafePress.com terminates your use of the Website or the CafePress Developers Network Service, CafePress.com may delete any Content or other materials relating to your use of the CafePress Developers Network Service on CafePress.com's servers or otherwise in its possession and CafePress.com will have no liability to you or any third party for doing so. 12. Notice. All notices required or permitted to be given under this 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 CafePress.com, you must use the following addresses: 950 Tower Lane, Suite 600, Foster City, CA 94404, TOS@cafepress.com. If CafePress.com provides notice to you, CafePress.com will use the contact information provided by you to CafePress.com. 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 this TOS or your use the Website or the CafePress Developers Network Service 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 reference to conflict 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. Any claim arising out of, relating to or connected with this TOS or your use of the Website or the CafePress Developers Network Service must be asserted individually. Notwithstanding anything to the contrary in this Section 12, CafePress.com 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. 13. Waiver and Release. To the maximum extent permitted by applicable law, you hereby release, and waive all claims against CafePress.com and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of the Website, the CafePress Developers Network Service, your Content and/or CafePress.com's use of your submissions. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations. 14. Intellectual Property Rights Policy Notification and Procedure. CafePress.com respects the intellectual property of others, and we ask our users to do the same. CafePress.com may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise infringed upon, please provide CafePress.com's Intellectual Property Rights Agent with a notification containing the following information: 1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other rights that have been allegedly infringed. 2. Identification of the copyright, trademark or other intellectual property rights that have been allegedly infringed. 3. The URL where the material complained about is located and a description of where the material that you claim is infringing is located on the www.cafepressdn.com website, with enough detail that allows us to locate the content on the website; 4. Your name, address, telephone number and email address. 5. A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the rights owner, its agent or the law. 6. A statement under penalty of perjury that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the copyright or other right that is allegedly infringed. Our Intellectual Property Rights Agent is Candice Carr, who may reached by mail, email, telephone or fax as follows: CafePress.com
15. Miscellaneous. This 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 will not be assignable or transferable by you without the prior written consent of CafePress.com, any attempted assignment or transfer without CafePress.com's consent shall be null and void and of no force or effect. This TOS (including all of the policies and other agreements described in this TOS, which are hereby incorporated herein by this reference) contains 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 CafePress.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. |