Welcome to the tomshirt.com website. The following describes the terms under which we provide the tomshirt.com website and Chip service (the “Service”) to you. This agreement governs both those who create registered member accounts through our Service (“Members”) and those who visit or use our Service without creating a registered member account (“Visitors”); this agreement applies to parties who wish to use the Service to establish a Campaign and offer Products, as set forth below (“Sellers”), including Sellers who choose to join our VIP Seller Program, and to those who purchase Products from those Sellers (“Buyers”).
If you register as a Member or make a purchase through the Service on behalf of a business or other organization, you represent and warrant that you have the authority to bind that organization and that your acceptance of this Agreement will be treated as acceptance by that organization.
Changes And Modifications
We may change or amend these terms from time to time. If we make material changes, we will notify you, either through the user interface, in an email notification, or through other reasonable means. Your use of the Service after the date such change(s) become effective will constitute your consent to the changed terms. If you do not agree to the changes, you must immediately stop using the Service; otherwise, the new terms will apply to you. As long as you comply with this Agreement, we grant you a limited, revocable, non-exclusive, non-assignable, non-sublicensable right to access and use the Service as it is intended to be accessed and used and in accordance with this Agreement and applicable law. We grant you no other rights, implied or otherwise.
Links To Other Sites
The Service may contain links to independent third-party websites (“Linked Sites”). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under our common ownership or common corporate control, and we are not responsible for and do not necessarily endorse the content or practices of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
Description of Services
The Service is an online design and sales platform that allows Members to initiate time-limited sales events (“Campaigns”) in which custom apparel, telephone cases, and other such products (“Products”) may be offered that bear pictures, graphics, and other content uploaded by the Member (“User Content”).
Conditions of Use
As a condition of your use of the Service, you agree to the following:
- You will not upload, post, email, transmit, or otherwise make available any content that is in violation of copyright law, trademark law, or any other law protecting intellectual property in any jurisdiction, or that violates an individual’s right to publicity or privacy.
- You will not use the Service to harass, threaten, impersonate, or intimidate anyone.
- You will not upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable.
- You will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “affiliate links,” or any other form of solicitation.
- You will not transmit any worms or viruses or any code of a destructive nature.
- You will not copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service or any part thereof.
- You will not violate any local laws in your jurisdiction (including but not limited to intellectual property laws).
- You will not use the Service for any illegal or unauthorized purpose. If you are an international visitor, you agree to comply with all local laws regarding online conduct and acceptable content.
- You will not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm, or methodology (or any similar or equivalent manual process) to access, acquire, copy, or monitor any portion of the Service or any User Content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any User Content, to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Service. We reserve the right to bar any such activity.
Your Member Account
A registered Member account is required to initiate a Campaign, join our VIP Seller program (optional), design a custom Product, or offer it for sale to Buyers through the Service; you do not need to be a Member of the Service to browse the tomshirt.com website, to purchase Products through the Service, or to share Campaigns initiated by Members of the Service.
You are solely responsible for any Campaign that is initiated and for any User Content that is published, transmitted, or disseminated using your registered Member account. You are solely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to immediately notify us of any unauthorized use of your account or password, or any other breach of security.
Information you Provide
You must provide us with accurate and complete contact and other requested information when you register as a Member of the Service or for our VIP Seller Program. In certain circumstances, we will also request that you provide us – or our third party partners – with payment / electronic transaction information. You must immediately notify us if any of this information changes. If you do not provide us with complete, accurate, and up-to-date contact and (when requested) payment / electronic transaction information, you may not be eligible to sell Products through the Service, to receive Pay-Outs at the conclusion of your Campaign (as defined below), or to participate in our VIP Seller Program.
The Service is an online design and sales platform that lets Members upload User Content. The Service also allows Members and Visitors to share such User Content through third-party web services, such as Facebook and Twitter, and allows Sellers to offer Products bearing User Content to third parties.
When you upload or otherwise provide User Content to or through the Service, you retain ownership of any copyright (and any other rights) you may already hold in your User Content. You also represent and warrant that, with respect to all User Content that you upload, transmit, publish, make available, and/or disseminate through the Service, (a) you have all the rights and licenses necessary to use, reproduce, publish, display publicly, perform publicly, create derivative works based on, and distribute or otherwise exploit such User Content in connection with the Service, and to grant us the licenses set forth in this Agreement; (b) the User Content will not infringe or otherwise violate the copyright, trademark, or any other right of any third party; and (c) you have the consent, release, and/or permission of each identifiable person depicted in your User Content (if any) to upload, transmit, publish, and/or disseminate their name and/or likeness through the Service and to use the same in connection with your Product(s).
By submitting User Content as set forth above, you hereby do and shall grant us – and our successors, assigns, entities that are under our common ownership or common corporate control, and third party service providers – a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, reproduce, modify, create derivative works based on, distribute, publicly display, and publicly perform, the User Content solely for purposes of providing you with the Service and advertising and promoting the Service — including, but not limited to, through the tomshirt.com website and through our social media channels, such as Facebook — in any medium and by any means currently existing or yet to be devised.
The Service allows Members to initiate Campaigns and offer Products to Buyers. You will not be charged a fee to set up a new Campaign.
When creating a new Campaign, you will be asked to specify the details of the Campaign. For example, you may be asked to provide and/or select (i) the User Content that will be used in connection with the Campaign, (ii) the Products that will be made available in connection with the Campaign, (iii) the price to be charged to Buyers of the Products, subject to certain restrictions, and (iv) the duration of the Campaign.
You may cancel a Campaign at any time.
At the conclusion of each Campaign, we will provide you with a report, including information concerning any Pay-Out (as defined below) that may be owed to you.
You may always view the current status of any Campaigns associated with your Member account by logging into your registered Member account through the tomshirt.com website.
VIP Seller Program
Our VIP Seller Program is custom-designed for Members who want to connect directly with those who purchase their Products and participate in their Campaigns. Members who join the VIP Seller Program will be provided with the email addresses of those who purchased Products thorough their Campaigns (“Shared Email Addresses”) at the conclusion of those Campaigns.
If you choose to join our VIP Seller Program, the following additional terms and conditions also apply to you:
Use of Shared Email Addresses. If you are provided with Shared Email Addresses, you agree to handle those Shared Email Addresses in accordance with this Agreement and:
- not to rent, share, sell, or otherwise transfer them to any third party;
- not to use them to send excessive email messages or to spam or harass any third party;
- not to use them in a manner that violates the CAN SPAM Act or any other applicable law; and
- to use them only to communicate regarding your Chip Service activity (e.g., to inform past Purchasers of your new Campaigns, and the like).
Fees. The registration fee to join our VIP Seller Program is USD $2,500 for a one (1) year membership. After your initial one-year term expires, you’ll remain registered for our VIP Seller Program with no additional payment on your part, so long as you remain a high volume Seller. Specifically, once your initial one-year membership term expires, you’ll continue to receive free monthly memberships to our VIP Seller Program so long as your average monthly sales volume for the preceding twelve (12) months is no fewer than 834 Products per month (i.e., 10,000 Product in the past year). If your average Product sales drop below 10,000 Products per year for the preceding twelve (12) month period, your membership in the VIP Seller Program will terminate unless you elect to sign up for another paid one (1) year membership term, at the then-current rate, as set forth below.
Payment Methods. By initiating your VIP Seller Program membership and providing us with a current, valid, accepted method of payment (as such may be updated from time to time, "Payment Method"), you authorize us to charge you for an annual membership fee at the then-current rate (rates may vary due to promotional offers, changing or adding a service), and any other charges you may incur in connection with your use of the VIP Seller Program service to your Payment Method. You may edit your Payment Method information by logging into your registered Member account through the tomshirt.com website. If a payment is not successfully settled, due to expiration of your Payment Method, insufficient funds, or otherwise, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. For certain Payment Methods, the issuer of your Payment Method may charge you transaction fees or other charges. Check with your Payment Method service provider for details.
No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. If you cancel your VIP Seller Program membership, you will continue to have access to the VIP Seller Program service through the end of your current membership period and until an additional membership fee would have been billed (e.g., due to low sales volume). Notwithstanding the foregoing, should Chip ever elect to provide a refund, discount, or other consideration to some or all of our VIP Seller Program members, such consideration shall be at our sole and absolute discretion. The provision of consideration in one instance does not entitle you to consideration in the future for similar instances, nor does it obligate us to provide consideration in the future, under any circumstance.
Cancellation, VIP Seller Program. Membership in our VIP Seller Program is entirely optional. You may cancel your VIP Seller Program membership at any time, and you will continue to have access to the VIP Seller Program service through the end of your membership period. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MEMBERSHIP. You can cancel your VIP Seller Program membership by logging into your registered Member account through the tomshirt.com website. If you cancel your VIP Seller Program membership, you will automatically lose access to our VIP Seller Program services at the end of your current membership period; your overall Member account may be closed independently and does not close automatically if you choose to cancel your optional membership in our VIP Seller Program.
Buyer Payments, Returns, Refunds, and Cancellation Policy
Time of payment
Due to the extensive amount of work required prior to the printing and shipping of your order (e.g., User Content preparation), Buyers will be charged at the time their order is placed.
Time of Shipment
For all Products except apparel, we will print your Product shortly after the completion of your order and ship the Product in due course. For Products that are apparel (e.g., t-shirts), all Products of the same type will be printed and shipped at the conclusion of the Campaign.
Cancellations, Refunds, & Exchanges
Because of the customized nature of Products, we do not allow cancellations, refunds, or exchanges. If, upon receipt of your finished Product, you feel that your order was incorrect due to an error on our part, please email us within fourteen (14) days of your delivery date. Claims are handled on a case-by-case basis.
Pay-Outs to Sellers
When creating a new Campaign, Members will be asked to input information regarding the Product(s) to be offered. For example, Members will typically be asked to specify the type of Product to be offered (e.g., t-shirts or hoodies) and answer a few questions regarding the nature of the User Content to be used in connection with the Product(s) and the Campaign overall (e.g., black and white design or four-color design, number of anticipated sales, etc.).
During the process of initiating a new Campaign, we will provide you with estimates regarding the amount that will be paid to you at the conclusion of your Campaign (the “Pay-Out”). These estimates are derived from the information you provide, using our proprietary algorithm designed to ensure your Pay-Out per Product increases as the volume of Products sold increases. These figures are provided for estimate purposes only; the actual Pay-Out you receive in connection with the purchase of each Product will be determined at the conclusion of your Campaign. For example, if your estimate specifies a one-color telephone case design, and you upload a two-color telephone case design instead, you may receive less then the estimated amount for each telephone case sold in connection with your Campaign; if your Campaign sells a high volume of apparel, you may receive more than the estimated Pay-Out amount, as our volume apparel discount increases along with the number of articles ordered.
If your Pay-Out is eligible to be paid via paper check, the option of selecting this payment method will appear as well. We may choose to make the option to receive payment via paper check available for any Pay-Out over USD $5,000.
If you fail to provide us with accurate and complete contact and payment information, and Pay-Out funds remain outstanding and unclaimed for more than twelve (12) months, you hereby expressly agree that you waive all right, title, and interest in or to any Pay-Out accrued and that any and all such funds shall be our sole property, to retain in our sole discretion, without any liability to you or to any third party.
You can always see any Pay-Outs that may be available for you to collect by logging into your registered Member account through the tomshirt.com website.
Pay-Outs to Members must exceed the amount of $20 in order for the Pay-Out to be initiated.
DMCA / Intellectual Property
If you believe that we, or those using our Service, have violated a copyright, trademark right, or any other intellectual property right you claim in your work, please contact us pursuant to the Digital Millennium Copyright Act (“DMCA”) and our Intellectual Property Policy at Intellectual Property Violation. Please review our DMCA / Intellectual Property Policy for more details on how to properly notify us of an intellectual property issue.
Our Intellectual Property
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, content, and computer code (collectively, “Our Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel,” and arrangement of Our Content, contained in the Service is owned, controlled, or licensed by us, and is protected by trade dress, copyright, patent, and trademark laws, and various other intellectual property and other rights. Your User Content (as defined above) is owned by you; your User Content is not Our Content.
Except as expressly provided in this Agreement, or otherwise permitted by law, Our Content may not be used, copied, reproduced, modified, republished, uploaded, posted, publicly displayed, publicly performed, publicly performed by means of a digital audio transmission, encoded, translated, transmitted, or distributed in any way to any other computer, server, website, or any other medium for publication or distribution, or for any other purpose, without our express prior written consent.
For the avoidance of doubt, and without limiting the forgoing, you retain ownership in any trademarks, logos, trade dress or other design elements owned by you which you apply to goods purchased through the Service.
Violation of this Agreement - Termination
You agree that we may, in our sole discretion and without prior notice to you, terminate your access to the Service and/or block your future access to the Service if we determine that you have violated this Agreement or other agreements or guidelines which may be associated with your use of the Service. Please note that it is our policy to terminate the account of members who repeatedly violate the copyrights, trademark rights, or other intellectual property rights of third parties.
If we take any legal action against you as a result of your violation of this Agreement, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted. You agree that we will not be liable to you or to any third party for termination of your access to the Service.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, AND ANY GOOD OR SERVICE ORDERED THROUGH THE SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR PARENTS, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, LICENSORS, AND ANY PARTY UNDER OUR COMMON OWNERSHIP OR COMMON CORPORATE CONTROL (“OUR AFFILIATES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WE AND OUR AFFILIATES MAKE NO WARRANTY THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) ANY PRODUCTS, SITES, INFORMATION, OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (e) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE OR RELATED SOFTWARE WILL BE CORRECTED.
ANY MATERIAL, INFORMATION, OR DATA DOWNLOADED, VIEWED, SHARED, OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK; YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULT FROM THE DOWNLOADING, VIEWING, SHARING, OR OTHERWISE ACCESSING OF SUCH MATERIAL. NO ADVICE, REPRESENTATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU EITHER FROM US OR THROUGH THE TOMSHIRT.COM WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS OF PROFITS, GOODWILL OR BUSINESS REPUTATION; ANY LOSS OF DATA; ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR ANY OTHER INTANGIBLE LOSSES. THIS ALSO INCLUDES ANY LOSS OR DAMAGES THAT MAY BE INCURRED BY YOU AS A RESULT OF (a) ANY CHANGES THAT WE MAY MAKE TO THE SERVICE; (b) ANY PERMANENT OR TEMPORARY CESSATION OF THE SERVICE; (c) THE DELETION OR CORRUPTION OF OR FAILURE TO STORE ANY USER CONTENT MAINTAINED THROUGH THE SERVICE; OR (d) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY ABOVE SHALL APPLY IRRESPECTIVE OF THE THEORY OF LIABILITY, INCLUDING CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY, EVEN IF WE (OR OUR AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR USER CONTENT OR THE INFRINGING, DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Exclusions and Limitations
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, OUR LIABILITY AND THAT OF OUR AFFILIATES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You will defend, indemnify, and hold us and Our Affiliates harmless from and against any and all liabilities and costs (including reasonable attorneys’ fees) we may incur in connection with any claim arising out of your breach of this Agreement. We reserve the right, but have no obligation, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
This Agreement is the whole legal agreement between you and us. It governs your use of the Service and completely replaces any prior agreements between you and us with respect to the Service. You may also be subject to additional terms and conditions that may apply when you use or purchase other services from us, our affiliates, or our parents or subsidiary entities.
You agree that all matters relating to your access to or use of the Service, including all disputes, will be governed by the laws of the State of California without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in Alameda County, California, and waive any objection to such jurisdiction or venue.
In the event of any controversy or dispute between you and us arising out of or in connection with your use of the Service, we will attempt, promptly and in good faith, to resolve the dispute. If we are unable to resolve any such dispute within a reasonable time, not to exceed ninety (90) days, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, or your use of the Service shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The place of arbitration shall be Alameda County, California.. The arbitration shall be governed by the laws of the State of California. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrators, all of their costs and fees. "Costs and fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and fees. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Statute Of Limitations
You agree that, regardless of any statute or law to the contrary, any claim under this Agreement must be brought within one (1) year after the cause of action arises, or such claim or cause of action is forever barred.
Severability of Terms; Non-waiver of Terms; Assignment
If any portion(s) of the Agreement is held to be invalid or unenforceable, such provision(s) shall be stricken and the remainder of the Agreement enforced as written. If we do not exercise or enforce any legal right or remedy including those contained in the Agreement or arising under applicable law, this will not be taken to be a formal waiver or relinquishment of our rights. We may assign or delegate all rights and obligations under the Agreement, fully or partially.