Terms and Conditions
Effective Date: June 23, 2011
Welcome to the CafePress website, which is located at www.cafepress.com (the "Website"). This Terms of Service ("TOS") contain the terms and conditions that govern your use of the Website and the CafePress Service (as defined below). This TOS describes your rights and responsibilities and what you can expect from the CafePress Service and is in addition to any Content Owner Agreement you may have entered into with us. Use of the CafePress Website constitutes your acceptance of and agreement to this TOS.
CafePress 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 CafePress 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 Service. Your continued use of the CafePress Website following posting of a change notice or new TOS on the CafePress Website will constitute binding acceptance of the changes.
1. The CafePress Service.
- CafePress provides a number of Internet-based services through the Website (all such services, collectively, the "CafePress Service"). One such service enables users to create customized products, including without limitation, apparel, drinkware, home accents, prints, stickers, buttons, magnets, stationary and accessories (collectively, "Products"). CafePress users may create and purchase individual Products for their own use or sell Products through the CafePress Service. Users who would like to sell Products through the CafePress Service must enter into the
- (formerly the Seller or Shopkeeper Agreement). CafePress 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 CafePress Service.
2.1 Eligibility. CafePress will only knowingly provide the CafePress 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 Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The CafePress 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 CafePress Service and the Website.
2.3 Your License to Use the Web Site and the CafePress Service.
(a) CafePress solely and exclusively owns all intellectual property and other rights, title and interest in and to the CafePress Service and Website, except as expressly provided for in these TOS. For example and without limitation, CafePress owns the trademarks CAFEPRESS(SM), CAFEPRESS.COM, CAFEPRESS.COM & Design; CAFESHOPS(SM), CAFESHOPS.COM(SM), and WHAT'S YOUR PASSION(SM); the copyrights in and to the Website, and certain technology used in providing the CafePress Service. You will not acquire any right, title or interest therein under this TOS or otherwise to any intellectual property owned by CafePress.
(b) CafePress grants you a limited revocable license to access and use the Website and the CafePress 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; to compete with CafePress; 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, CafePress 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.
3. General Rules.
3.1 Prohibited Use. You may only use the CafePress Service as expressly permitted by CafePress. You may not cause harm to the Website or the CafePress Service. Specifically, but not by way of limitation, you may not: (i) interfere with the CafePress 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 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 the creation of Content in such a manner as to interfere with or create an undue burden on the CafePress 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 CafePress Service; (vi) impersonate another person or entity; (vii) use any meta tags, search terms, key terms, or the like that contain CafePress' name or trademarks; (viii) engage in any activity that interferes with another user's ability to use or enjoy the CafePress 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 CafePress' 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 and Buy General Rules and License.
4.1 Description. As part of the CafePress Service, CafePress offers a service (the "Create & Buy Service") that allows you to upload images, video, audio, data, 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 CafePress all Content that you want to use with the Create & Buy Service in accordance with the applicable instructions on the Website and the Content Usage Policy. CafePress may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the Create & Buy Service. You are subject to all of the same rights, responsibilities and restrictions with respect to any Content as are found in Section 3, 4, and 5 of the Content Owner Agreement, which is hereby incorporated by reference in this TOS.
4.3 Licensing Your Content to CafePress. You will retain ownership of the Content that you upload to the Website. You hereby grant to CafePress a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as CafePress deems necessary to enable you to use the Create & Buy Service to create, produce and purchase Products. CafePress may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of providing the CafePress Service, processing your order, and producing and shipping your Products.
5. Reservation of Rights.
5.1 Monitoring. CafePress reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If CafePress determines, in its sole and absolute discretion, that you or another CafePress user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, CafePress 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 reserves the right to modify the organization, structure or "look and feel" of the CafePress Service or the Website, and may change, suspend, or discontinue any aspect of the CafePress Service at any time without any liability to you or any third party. CafePress shall have complete discretion over the features, functions, prices and other terms and conditions on which the CafePress Service is offered to CafePress 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 CafePress permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that CafePress will have no obligation to keep any Submissions confidential. You will not bring a claim against CafePress based on "moral rights" or the likes arising from CafePress' use of a Submission. This Section does not apply to your Content that you use in connection with the Create & Buy Service or COS.
7. Representations and Warranties.
7.1 Mutual Representations and Warranties. You represent and warrant to CafePress and CafePress 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 CafePress that, in your use of the CafePress 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 exploiting images or the likeness of minors. You further represent and warrant to CafePress 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 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 incurs in providing the CafePress 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.
8. Disclaimers and Exclusions.
DISCLAIMER OF WARRANTIES. CAFEPRESS PROVIDES THE WEBSITE AND CAFEPRESS SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. CAFEPRESS DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, CAFEPRESS 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 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.
9. Limitation of Liability.
LIMITATION OF LIABILITY. CAFEPRESS 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 CAFEPRESS 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 CAFEPRESS TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
- You hereby indemnify and hold CafePress 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 CafePress due to any breach of this Agreement or violation of any policy. If you have to indemnify CafePress under this Section, CafePress 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 CafePress' express written permission.
11.1 Termination. In its sole discretion, with or without notice to you, CafePress may: (i) suspend, limit your access to or terminate your use of the Website and/or the CafePress Service, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from CafePress' servers and directories and (iv) prohibit you from using the CafePress Service and/or the Website.
11.2 Survival. Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until CafePress chooses to terminate this TOS.
11.3 Effect of Termination. If you or CafePress terminates your use of the Website or the CafePress Service, CafePress may delete any Content or other materials relating to your use of the CafePress Service on CafePress' servers or otherwise in its possession and CafePress 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 CafePress, you must use the following addresses: 1850 Gateway Drive, Suite 300, San Mateo, CA 94404,
- . If CafePress provides notice to you, CafePress will use the contact information provided by you to CafePress. 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 the CafePress Service will be exclusively resolved under confidential binding arbitration held in Los Angeles County, California, before and in accordance with the Rules of JAMS, 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 Los Angeles County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Los Angeles County. Notwithstanding anything to the contrary in this Section 13, CafePress 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 California without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of CafePress. 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 CafePress 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.