Welcome to the everythingGear website, located at www.everythinggear.com (the "Website"), and maintained by CafePress Inc., doing business as everythingGear (“everythingGear”). This Terms of Service ("TOS") contains the terms and conditions that govern your use of the Website and the Service (as defined below). This TOS describes your rights and responsibilities and what you can expect from the everythingGear Service and is in addition to any other agreements you may have entered into with us. Use of the the Website constitutes your acceptance of, and agreement to, this TOS.
everythingGear 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 everythingGear 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.
everythingGear provides a number of Internet-based services through the Website (all such services, collectively, the "everythingGear Service"). One such service enables users to create and purchase customized products, including without limitation, apparel, drinkware, home accents, prints, stickers, buttons, magnets, note cards and accessories (collectively, "Products"). everythingGear users may create and purchase individual Products for their own use through the everythingGear Service. everythingGear 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.
2.1 Eligibility. everythingGear will only knowingly provide the everythingGear 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 everythingGear Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The everythingGear 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 of this TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the everythingGear Service and the Website.
2.3 Your License to Use the Website and the everythingGear Service.
(a) everythingGear solely and exclusively owns all intellectual property and other rights, title and interest in and to the everythingGear Service and the Website, including the base designs appearing on customized products, except as expressly provided for in these TOS. For example and without limitation, everythingGear owns the copyrights in and to the Website, the design used to create the customized products, the customized products, and certain technology used in providing the everythingGear Service. You will not acquire any right, title or interest therein under this TOS or otherwise to any intellectual property owned by everythingGear.
(b) everythingGear grants you a limited revocable license to access and use the Website and the everythingGear Service for their 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 everythingGear; to compete with everythingGear; 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, everythingGear may revoke the license granted to you.
3.1 Prohibited Use. You may only use the everythingGear Service as expressly permitted by everythingGear. You may not cause harm to the Website or the everythingGear Service. Specifically, but not by way of limitation, you may not: (i) interfere with the everythingGear 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 everythingGear Service; (iii) interfere with, or disrupt the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or by scripting in such a manner as to interfere with or create an undue burden on the everythingGear Service; (iv) 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; (v) collect electronic mail addresses or other information from third parties by using the everythingGear Service; (vi) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain everythingGear's name or trademarks; (viii) engage in any activity that interferes with another user's ability to use or enjoy the everythingGear Service; or (ix) assist or encourage any third party in engaging in any activity prohibited by this TOS.
3.3 Ordering Policies. If you purchase Products, you agree to do so in accordance with instructions provided on the Website. Title to the Products you purchase passes to you when the Products are delivered to the common carrier.
4.1 Service Description. As part of the everythingGear Service, everythingGear offers a service that allows you to add text (the "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 everythingGear all Content that you want to use with the everythingGear Service in accordance with the applicable instructions on the Website. everythingGear may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the everythingGear Service.
4.3 Licensing Your Content to everythingGear. To the extent you have any legally recognized ownership rights, intellectual property, or otherwise, in and to the Content, you will retain said ownership of the Content that you type into to the Website. You hereby grant to everythingGear a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as everythingGear deems necessary to enable you to use the everythingGear Service to create, produce and purchase Products. everythingGear may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of providing the everythingGear Service, processing your order, and producing and shipping your Products. As stated in Section 2.3, you do not have, and will never obtain, any rights in and to the base designs, or the customized products.
5.1 Monitoring. everythingGear reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If everythingGear determines, in its sole and absolute discretion, that you or another everythingGear user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, everythingGear 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. everythingGear reserves the right to modify the organization, structure or "look and feel" of the everythingGear Service or the Website, and may change, suspend, or discontinue any aspect of the everythingGear Service at any time without any liability to you or any third party. everythingGear shall have complete discretion over the features, functions, prices and other terms and conditions on which the everythingGear Service is offered to everythingGear users.
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 everythingGear permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that everythingGear will have no obligation to keep any Submissions confidential. You will not bring a claim against everythingGear based on "moral rights" or the likes arising from everythingGear's use of a Submission. This Section does not apply to your Content that you use in connection with the everythingGear Service.
7.1 Mutual Representations and Warranties. You represent and warrant to everythingGear and everythingGear 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 everythingGear that, in your use of the everythingGear Service, 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 not violate any applicable laws, rules, and regulations, including, without limitation, by violating a person’s right of publicity or privacy and exploiting the likeness of minors. You further represent and warrant to everythingGear 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) everythingGear 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 everythingGear incurs in providing the everythingGear Service; (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.
DISCLAIMER OF WARRANTIES. EVERYTHINGGEAR PROVIDES THE WEBSITE AND EVERYTHINGGEAR SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. EVERYTHINGGEAR DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, EVERYTHINGGEAR 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. EVERYTHINGGEAR MAKES 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.
LIMITATION OF LIABILITY. EVERYTHINGGEAR 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 THE EVERYTHINGGEAR SERVICE 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 EVERYTHINGGEAR TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (II) $100.
You hereby indemnify and hold everythingGear 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 any of the Parties alleging that you have breached any provision of this TOS through any act or omission, including, without limitation, monetary damages incurred by everythingGear due to any breach of this Agreement or violation of any policy. If you have to indemnify everythingGear under this Section, everythingGear will have the right to control the defense, settlement, and resolution of any Claim solely as against you and at your sole expense. However, you may not settle or otherwise resolve any Claim without everythingGear's express written permission.
11.1 Termination. In its sole discretion, with or without notice to you, everythingGear may: (i) suspend, limit your access to or terminate your use of the Website and/or the everythingGear Service, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from everythingGear's servers and directories and (iv) prohibit you from using the everythingGear Service and/or the Website.
11.2 Survival. Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until everythingGear chooses to terminate this TOS.
11.3 Effect of Termination. If you or everythingGear terminates your use of the Website or the everythingGear Service, everythingGear may delete any Content or other materials relating to your use of the everythingGear Service on everythingGear 's servers or otherwise in its possession and everythingGear will have no liability to you or any third party for doing so.
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 everythingGear, you must use the following addresses: 1850 Gateway Drive, Suite 300, San Mateo, CA 94404 or firstname.lastname@example.org. If everythingGear provides notice to you, everythingGear will use the contact information provided by you to everythingGear. 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.
All disputes arising out of, relating to or connected with these TOS or your use of any part of the everythingGear Service will be exclusively resolved under confidential binding arbitration held in North Carolina, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying North Carolina 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 North Carolina. Each party hereby irrevocably submits to the personal jurisdiction of the federal and state courts in North Carolina. Notwithstanding anything to the contrary in this Section 13, everythingGear 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.
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 North Carolina without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of everythingGear. 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 everythingGear 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.