change to our TOU, it will constitute binding acceptance of the changes.
2.1 Representations:You represent and warrant to us, and we represent and warrant to you: (i) that you or us have the full power and authority to enter into and perform under this TOU, (ii) the execution and performance of your or our obligations under this TOU do not constitute a breach of or conflict with any other agreement or arrangement by which you or we are bound, and (iii) this TOU is a legal, valid and binding obligation of us and you entering into this TOU, enforceable in accordance with its terms and conditions.
3.1 Basic Limits of Your Use. You agree to use our products and services in good faith, and will do so in compliance with any applicable law. You expressly may not use our site or services under the following conditions, and agree not to use our site or services in such cases:
- You are unable to be contractually bound.
- You are using it to commit a crime, an act of terrorism, or are violating applicable rules or regulations.
- You are using it to harass, intimidate, molest, enslave, or injure others.
- You are using it to spam, or are spamming others in affiliation with us.
- You are using it to conduct business other than the business we set forth in this agreement without our written permission, or to compete with us.
- You are unstable or irrational and/or cannot behave yourself in an adult manner.
- You may be harmed by viewing language or images by way of a computer monitor or a t-shirt.
- You are misrepresenting yourself to us.
- You are using our affiliate program to create false value.
- You are infringing on third party intellectual property rights (such as but not limited to copyright, trademark, trade dress, right of publicity, patent, trade secret, or right of privacy).
- There are claims, demands or any form of litigation pending, or to the best of your knowledge, threatened by any of your or your design's content.
- Your content obligates us to pay third parties for its use.
- Your content contains instructions, formula, recommendations, or the like that may cause injury to any third party.
5.1 Survivability: This TOU will survive indefinitely unless and until we choose to terminate this TOU. If you or we 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 our possession and we will have no liability to you or any third party for doing so.
6.1 Indemnity: You must indemnify and hold us and our 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 TOU 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
7.1 Due Diligence: You understand that due diligence in all business matters is your responsibility, and it is up to you to make sure you are compliant with intellectual property rights, the laws, and the usability of products and information. You also agree not to divulge to us information that may incriminate us or make us somehow liable to other parties. You understand that while we have rules and regulations concerning the use of our site, we do not warrant or guarantee that the users on our site are in compliance. If at any time we do not enforce any element of this TOU, we do not diminish our right to enforce elements in the future without changes to our TOU.
7.2 Security: We use commercially reasonable technical safeguards to preserve the integrity and security of your personal information. We cannot, however, ensure or warrant the security of any personal information you transmit to us and you do so at your own risk. We do limit access to personal information about you to employees who we believe reasonably need to come into contact with personal information to provide products or services to you or in order to do their jobs.
8.1 We own Us: 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 TOU. You will not acquire any right, title or interest under this TOU or otherwise to any intellectual property owned by us -or anyone else for that matter. We grant you a limited revocable license to access and use our website and services for its intended purposes, subject to your compliance with this TOU. 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 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 you breach this TOU, we revoke this license granted to you.
9.1 You Will Not Stop Us: You may not cause harm to the website or our services. You may not: (i) interfere with us or our services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) hack or social engineer us or our services; (iii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide our services; (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 our services; (vi) engage in any activity that interferes with another user's ability to use or enjoy our services; or (vii) assist or encourage any third party in engaging in any activity prohibited by this TOU.
10.1 Modification of Service: We reserve the right to modify the organization, structure or "look and feel" of our website, and may change, suspend, or discontinue any aspect of our service 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 of our services.
11.1 DISCLAIMER OF WARRANTIES: WE PROVIDE THE WEBSITE AND SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DO NOT REPRESENT OR WARRANT THAT THE WEBSITE, OUR 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. WE MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOU, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
11.2 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 SERVICE OR THIS TOU, 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 TOU OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOU. IN NO EVENT WILL OUR LIABILITY TO YOU IN CONNECTION WITH THIS TOU 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.
12.2 Your contact information: You must at all times keep your contact information up to date including your email, telephone number, and postal address. If at any time we try to contact you through the channels you provide, whether it be your email, telephone, or snail mail, that attempt counts as a valid notification. You understand that if you provide us with an address to ship to, we are only responsible for shipping to that address, and rerouting products may incur additional expenses on your part. We are not responsible for the shipping of products purchased by you that could not be delivered to you because of an oversight not on our part. Please make arrangements to receive your goods within 30 days of your order so that we may release your products to you. If you do not make arrangements in that time frame, you forfeit your rights to those products and in some cases may be liable for storage fees. Just because we are nice and may not enforce this policy, does not mean we forfeit the right to do so in the future. We do not insure your shipments from loss or damages unless you chose that option and pay the associated fees. In the case of monies we may owe you for the licensing of your intellectual property or other, if your information is not valid or accurate for 90 days from a payout, you will be assessed an administration fee in the amount equal to any monies we may owe you.
12.3 International Users: If you are a user accessing the website from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please be advised that through your continued use of the website, which is governed by U.S. law and this TOU, you will be transferring your personal information into the United States and you consent to that transfer.
13.1 Return Policy: If you purchase products from us, you agree to do so in accordance with our 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.
13.2 Return Authorization Code: Under no circumstances do we accept returns that are not accompanied by a return authorization code. If you wish to make a return for any reason, you must get a return code from us. There are two reasons for the code: a.) we need to be able to track what you are returning and why, b.) certain items may not be returned. In any case, we can't be of much help if we receive USOs (unidentified shipped objects).
13.3 Warranty: Our warranty on merchandise is limited to the product itself. We are not responsible for incidental damages as a result of product or service failure. That includes all incidentals involving events, lawyers, or great catastrophes that happen, whether or not the problem arose because our products were incorrect, late, or faulty. However, we stand behind our products. In the event of misprinting, faulty product, or incorrectly shipped items, we will diligently work with you to resolve the situation. We will either credit your account, replace the product, or refund your money depending on what is prudent. We will also apologize for errors on our part.
13.4 Preprinted designs: We accept returns of preprinted merchandise (pre-made designs for sale on the website) if you notify us of your dissatisfaction within 5 business days of your receipt. In the case of improper size, we will exchange it for the correct size if at all possible. We cannot accept returns of items that have been washed, worn, are otherwise unsalable, or are classified as undergarments or swim wear, except in the case of errors on our part, or defective product. You may be asked to pay the postage for the new merchandise if the error was on your part.
13.5 Custom orders: Due to the nature of custom orders, we can only accept returns for defective merchandise or improper printing on our part. In either case we will replace the merchandise for the correct goods if at all possible. We do not offer discounts for misprints or defective products. We want you to have top quality merchandise that you can be proud of. Also, we reserve the right to substitute comparable products if items become unavailable or unreasonable for us to obtain.
14.1 Reporting TOU: If you suspect a user is violating the TOU please notify us immediately. While we will strive to take prudent action.
15.1 Intellectual Property Policy: We at Red Alert Screen Printing/Ziraxia.com are writers and artists. We don't want to violate anyone in ways we wouldn't want to be violated ourselves. In other words, we take intellectual rights seriously. If we didn't make an agreement with you to buy your designs from you, then we are simply licensing your designs from you when we sell products embellished with those designs. If at any time you feel someone is infringing your intellectual rights please notify us immediately. We will take appropriate action (at our discretion) to have the design removed, and in some cases suspend a user for violation of TOU. In any case, you need the following to file a complaint:
- 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.
- Identification of the copyright, trademark or other rights that have been allegedly infringed.
- The URL or product number(s) used in connection with the sale of the allegedly infringing merchandise.
- Your name, address, telephone number, and email address.
- A statement that you have a good-faith belief that the use of the material in the manner complained of is not authorized by the rights owner, its agent or the law.
- A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright or other right that is allegedly infringed.
15.2 Derivative works: Please do not send us designs that incorporate characters owned by authors other than yourself. We expressly prohibit designs that are derivative works where you do not own the original. Exceptions to that rule are as follows: it must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version. The new material must be original in itself. Titles, short phrases, and format, for example, are not substantially different.
15.3 Ownership: On the flip side, if your work is not substantially different from other works in the public domain, while we may license your design from you, we may not recognize your right to own that design. Our rule is that you own it if it is possible for you to hold a U.S. Copyright on it.
15.4 Licensing your Designs to Us: You retain copyright ownership of your designs. On custom screen printed orders you grant us the right to produce a product for sale to you. You grant us the right to own the materials necessary to fulfill the orders you place with us, including but not limited to screens, films, computer files, and test prints.
15.5 In the case of designs for products on Ziraxia.com: You hereby grant us a worldwide, nonexclusive, right and license to use the content you send us to produce products for warehouse, sale, and advertising of your products and advertising of Ziraxia. When we sell products produced using your designs, we pay you a licensing fee set forth in our Payment Policy. You grant us the right to use your design in order to promote products we license from you and to promote our website and services. Our advertising efforts may include but are not limited to photos, giveaways, and virtual products in virtual worlds.
15.6 Revoking your license to us: If you choose to revoke our license to your works, you must allow us 120 days notice of your intent to revoke. You must do so in writing via certified letter to Red Alert Screen Printing (Design Revocation) 6121 Jet Port Industrial Blvd, Tampa, Fl 33634. You may send an email to help us expedite the process, but an email to us does not count as notification. Calling us on the phone follows the same rules as email. Please specify the titles you wish to revoke. You grant us unlimited time to deplete any stocks we may have in warehouse or in the generation process, and fulfill any orders we may have, whether retail, wholesale, or in the sales process. You hold us blameless and harmless with respect to our winding down and closing out of business. You understand that your design may remain for sale on Ziraxia.com until our stocks are depleted, at our discretion.
16.1 The Affiliate Program: We may refuse your participation in the affiliate program for any reason, and at any time, even if you are already engaged as an affiliate. Without notice you do not have permission or the right to use our affiliate program under the following circumstances:
- Your participation promotes acts of crime or terrorism.
- In conjunction with your ads you are attempting to harass, intimidate, molest, enslave, or injure others.
- You are using an incentive program or site to promote affiliate links.
- You are representing yourself as an agent of Ziraxia.com in order to mislead others.
- You are attempting to use our logos or name without our express permission, including as part of a URL.
- You are misrepresenting Ziraxia or our products.
- You are defaming Ziraxia or Ziraxian products.
- You seek to purchase or register any keywords, search terms or other identifiers that include the word "Ziraxia" or variations thereof.
16.2 The Affiliate Links: Unless you are excluded from the affiliate program, we grant you a revocable, non-exclusive, worldwide, license for the duration of the term of this Agreement, solely for purposes of facilitating referrals from you to Ziraxia.com. You must ensure that each of the links you use is properly formatted for our affiliate program. You will earn Affiliate Commissions only with respect to activity on Ziraxia.com occurring directly through your affiliate link. We will not be liable to you with respect to any failure by you to use links in accordance with our standards, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement. You acknowledge and agree that you will: (a) not alter our banners or images in any way or make them invisible, illegible or indecipherable to visitors of your site; (b) use any data, images, text, or other information obtained by you from us or Ziraxia.com only in a lawful manner and only in accordance with the terms of this Agreement; (c) not sell, redistribute, sublicense or transfer any Content that does not explicitly belong to you; (d) not use any Content in a manner intended to send sales to any site other than Ziraxia.com; (e) not use any Content, including any name or likeness embodied therein, in a manner that implies a person's or company's endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, party or cause.
16.3 Order Processing: We will process Product orders placed by customers who follow affiliate links from you to Ziraxia.com. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using affiliate links, and we will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion.
16.4 What is an Affiliate Referral: We will pay you affiliate commissions on certain Product sales to affiliate referrals. An affiliate referral is when someone who clicks through a properly formatted affiliate link provided by you to Ziraxia.com makes a completed unrevoked sale within 30 days of your initial referral. You may not purchase products using your own affiliate links in any circumstance, including orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (at our discretion) in the withholding of affiliate commissions and/or the termination of your participation in the affiliate program. In addition, you may not attempt to circumvent the affiliate commissions schedule or artificially increase your affiliate commissions. You may not attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert affiliate commissions from, any web site that participates in the Program.
16.5 Proprietary Terms with respect to search engine, portal, sponsored advertising service or other search or referral service: From time to time we may request that you cause any applicable Web search provider to exclude Proprietary Terms from keywords used to display your advertising content in association with search results, assuming the provider of such Web search engine offers such exclusion capabilities. If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or, as the case may be, refused promptly to comply with a request from us to exclude Proprietary Terms from any keyword as mentioned above, we may (without limiting any other rights or remedies available to us) withhold any affiliate commissions otherwise payable to you under this Agreement and/or terminate this Agreement. The following terms is a non-exhaustive list of terms you must use as negative keywords: Ziraxia, Ziraxian, Ziraxians, "the best T-shirts"
16.6 Affiliate Commission Payment Policy: See our Payment Policy.
16.7 Responsibility for Your Claims: You will be solely responsible for any claims you make about Ziraxia.com even if they were true when you made them, but they became untrue due to our policy changes. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your affiliate links.
16.8 Compliance with Laws: As a condition to your participation in the Affiliate Program, you agree that while you are a Program participant you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are a Program participant. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
16.9 Termination of Your Affiliation: The term of this Agreement will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. We may notify you via the email address you provide to us. Upon the termination of this Agreement for any reason, you will immediately cease to earn Affiliate Commissions.
16.10 Modification: We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting the change or a new agreement on Ziraxia.com. Modifications may include, for example, changes in the scope of available affiliate commissions, affiliate commissions schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE OR NEW AGREEMENT ON ZIRAXIA.COM WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
16.11 Nonexclusivity: YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17.1 Dispute Resolution: All disputes arising out of, relating to or connected with these TOU or your use of any part of our service will be exclusively resolved under confidential binding arbitration held in Tampa, Florida, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying Florida 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 Hillsborough County, Florida. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and Florida State courts in Hillsborough County. Notwithstanding anything to the contrary in this section, 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.
18.1 Contractors: You and we are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOU. You agree to pay all and any taxes with respect to your earnings, and understand we withhold no monies on your behalf for tax paying purposes.