1. GENERAL INFORMATION
(a) This agreement governs your use of positiveprospect.com’s site and service, including all orders made or processed for products or services in connection with the site and service. You and positiveprospect.com Inc., a Delaware corporation providing custom, on-demand merchandise printing, sales, and other related services (“positiveprospect.com”), are the parties to this agreement. If you choose to use other features of the site and service, like opening a shop to sell custom, print-on-demand products, other terms may apply in addition to these. No exceptions to these terms are effective unless positiveprospect.com has agreed to them in writing.
(b) Positive Prospect may change these terms from time to time. If Positive Prospect makes changes to these terms, you will be notified and asked to accept the new terms as a condition of continuing to use Sumiu Shop’s site and service. If you disagree with any amendments, you must stop using Positive Prospect’s site and service.
2. USE OF THE SITE AND SERVICE GENERALLY
(a) positiveprospect.com owns all intellectual property and other rights, title and interest in and to its site and service (except for user-provided content). Your use of the site and service does not grant you any right, title or interest to these properties, except as follows. positiveprospect.com grants you a limited, revocable license to access and use the site and service for its intended purpose: the provision of an online, on-demand, customizable merchandising solution. You may only use the site and service according to positiveprospect.com’s terms, rules, and guidelines found on its site, and positiveprospect.com may revoke this license and limit your access to the site and service according to Section 15 (Termination of Access).
(b) You may not
interfere with the site and service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware;
modify, copy, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the site and service;
use a robot or other automated means to monitor the activity on or copy information or pages from the site and service, except search engines, traffic counters, or similar basic performance monitoring technology;
impersonate another person or entity;
use any meta tags, search terms, keywords, or similar tags that contain positiveprospect.com’s name or trademarks;
engage in any activity that interferes with another user’s ability to use or enjoy the site and service, including activity that places a disproportionate burden on the site and service compared to ordinary use from a single, ordinary user;
assist or encourage any third party in engaging in any activity prohibited by this agreement; or
use the site and service to promote hate speech, obscenity, or any content that violates, which positiveprospect.com may change from time to time in positiveprospect.com’s sole discretion.
(a) Two shop types are available on positiveprospect.com’s site. First, there are shops designed and operated by positiveprospect.com itself (“positiveprospect.com(s)”) and shops designed and operated by independent shop owners (“Partner Shop(s)”). Information about the owner of any shop is available as a linked page in each shop.
(b) Independent shop owners of Partner Shops are solely responsible for the products and designs offered in those shops, the design of those shops, and the advertising of the articles offered. positiveprospect.com does not use designs or products of shop owners until a customer places an order that includes one of those designs or products.
4. PRODUCT SALES
(a) By placing an order using positiveprospect.com’s site and service, a customer makes a binding offer for a contract of sale or, as the case may be, a contract for work and materials with positiveprospect.com only (no contract exists between the customer and any applicable shop owner). positiveprospect.com sends an order confirmation via e-mail to the customer. The order confirmation is not an acceptance of the offer, but only acknowledges that the order was received. The offer is only accepted when positiveprospect.com confirms that production has completed in a second e-mail. positiveprospect.com cannot guarantee the continued availability of any products or designs found on its site.
(b) Information, drawings, figures, technical data, specifications of weight, measurements and services contained in brochures, catalogues, newsletters, ads, or price lists are purely informational. positiveprospect.com cannot guarantee the correctness of this information, and if there is any inconsistency between the information described above and the information in an order confirmation email, the order confirmation email controls.
(c) positiveprospect.com reserves the right to reject orders for any reason or no reason. If positiveprospect.com rejects an order, it will notify the customer.
(d) positiveprospect.com’s performance of an order is completed when the shipment provider completes delivery to the customer’s address, according to the records of the shipment provider. If there is an interruption of delivery, and positiveprospect.com cannot replace the order in a reasonable amount of time, positiveprospect.com will notify the customer immediately.
(e) If there is a product defect or if you are dissatisfied with your order for any reason, positiveprospect.comwill apply, which positiveprospect.com may change at any time in its sole discretion.
5. DELIVERY & SHIPMENT
(a) positiveprospect.com warrants that it will ship orders within three weeks after orders are placed. Normally, goods are shipped within a few days and typical delivery times are 2-4 days, but in certain circumstances shipment and delivery can take up to three weeks. Customers and positiveprospect.com may separately agree to more specific delivery times and terms in a separate writing or agreement (such as a request for express shipping).
(b) positiveprospect.com will make delivery using a shipment service provider of its choosing. The customer must pay standard shipping costs which may depend on order value and shipping destinations. Shipping costs are displayed at checkout.
(a) All prices found on positiveprospect.com’s site are final, and may change from time to time. Shipping and handling are billed and shown separately at checkout (or on invoices, if applicable). The shipping address and order amount may affect certain costs, and sales taxes may apply to some orders.
(b) For customers ordering from outside the United States, all product prices are net of local taxes and fees. If, according to applicable law, the goods are subject to sales taxes, import duties, import brokerage fees, or other taxes or fees in the recipient’s country, then the customer has the sole responsibility to pay these taxes and fees.
(c) Customers must pay the purchase price, applicable sales taxes, and shipping and handling charges immediately upon placing an order, without deduction.
(a) Customers may choose to pay by direct debit, credit card, advance payment, or other payment methods. positiveprospect.com reserves the right to limit the method of payment chosen by the customer depending on order value, shipment destination, or other objective criteria.
(b) If the customer selects a payment method or provides payment information that makes it impossible or impractical for positiveprospect.com to receive payment (for example, the customer’s account lacks sufficient funds, or the customer provided incorrect payment information) through no fault of positiveprospect.com’s own, the customer agrees that positiveprospect.com may add an additional charge to the order to recoup costs associated with processing or attempting to process the impossible or impractical transaction.
(c) positiveprospect.com may sub-contract third parties to process payment.
(d) If the customer fails to pay, positiveprospect.com may assign its claims to a debt collection agency and transfer the personal data required for collecting payment to these third parties.
8. TITLE TO PRODUCTS
Until positiveprospect.com receives full payment for an order and the order is shipped, title to the goods remains with positiveprospect.com. Upon transfer of the goods to the carrier, title and risk of loss passes to the customer. The customer should handle products with care until the transfer of ownership is complete (for example, in case of a product return).
(a) positiveprospect.com provides the site and service on an “as is” and “as available” basis. positiveprospect.com does not represent or warrant that the site and service or its use: (i) will be uninterrupted, timely, safe, or secure, (ii) will be free of inaccuracies, errors, or vulnerabilities, (iii) will meet your expectations or requirements, or (iv) will operate in the configuration or with the hardware or software you use. positiveprospect.com hereby disclaims any and all express or implied warranties, including without limitation, warranties of fitness for a particular purpose, merchantability, and non-infringement to the fullest extent of the law, except to the extent that this agreement provides otherwise.
(b) You agree that positiveprospect.com has no responsibility for any damages suffered by you in connection with the site and service, and that use of the site and service, including all content, data or software distributed by, downloaded, or accessed from or through the site and service, is at your sole risk. You understand and agree that you will be solely responsible for any damage to your business or your computer system or any loss of data that results from your actions and your use of the site and service. Positive Prospect does not control or endorse in any respect any information, products, or services offered by third parties through the site and service, and is not responsible for any possible representations and warranties these third parties may make.
(c) Due to normal changes in our industry and in our technical production processes, positiveprospect.com may reasonably deviate from the descriptions and information found in its brochures, catalogues, and other documents with respect to material, color, weight, measurements, design, or other features.
(d) positiveprospect.com may use subcontractors or third parties to provide certain elements of its site and service. You agree that Sumiu shop will not be liable to you in any way for your use of these services.
10. LIMITATION OF LIABILITY
(a) You use positiveprospect.com’s site and service at your own risk. positiveprospect.com provides its site and service without any express or implied warranties (See Section 9(a) (Disclaimers) above). positiveprospect.com is not responsible for the actions, content, information, or data of third parties. You release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against Spreadshirt or any related third parties. If you are a California resident, you waive California Civil Code §1542, which says in full: “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.”
(b) positiveprospect.com is not liable to you for any lost profits or other consequential, special, indirect, or incidental damages arising out of or relating to the site and service or any agreement between you and positiveprospect.com, even if advised of the possibility of such damages. positiveprospect.com’s aggregate liability arising out of or in connection with the site and service or any agreement between you and positiveprospect.com may not exceed the lesser $100 or the amount of cash actually exchanged between you and positiveprospect.com within the past six months. Applicable law may not allow the limitation or exclusion of liability described in this Section. In such cases, Positive Prospect’s liability will be limited to the fullest extent permitted by applicable law.
11. USER REPRESENTATIONS AND WARRANTIES; TSHIRT PEAK’S RIGHT TO REFUSE PERFORMANCE
(a) If you upload designs or make changes to products in any way (for example, adding custom text), you represent and warrant to positiveprospect.com that you have all necessary rights (for example, in trademark, copyright, privacy rights, publicity rights, common law, etc.) to use the text or design without violating the rights of any third party. positiveprospect.com may, in its sole discretion, refuse to print any designs or text that you submit. However, positiveprospect.com is not obligated to review any of your submissions.
(b) You agree to (i) indemnify and (ii) release positiveprospect.com from all liability (including costs and attorney’s fees) for claims relating to the alleged or actual infringement of any third-party rights and any law to the extent that such claims relate to your use of positiveprospect.com’s site and service. If you are a shop owner with positiveprospect.com, positiveprospect.com may offset amounts in your shop owner account to satisfy the indemnification payments owed according to this paragraph.
12. DATA PROTECTION
13. DISPUTE RESOLUTION
(a) The formation, construction, and performance of this agreement (and all other agreements incorporating this agreement by reference) must be construed in accordance with the laws of the United States and Massachusetts without regard to their choice of law rules. The parties agree that any dispute arising out of or relating to this agreement must be submitted to confidential binding arbitration in Boston, Massachusetts, except that Sumiu shop may seek injunctive or other appropriate relief in any state or federal court in Massachusetts if you have violated or threatened to violate the intellectual property rights of positiveprospect.com or a third party, or any term of any agreement you have with positiveprospect.com. The parties agree that
the arbitration will be provided by an alternative dispute resolution provider mutually agreed upon by the parties, and if the parties cannot agree, then through the American Arbitration Association;
claims must be conducted on an individual basis, and not in a class, consolidated, or representative action; and
any judgment on the award rendered by the arbitrator is final, binding, and may be entered in any court of competent jurisdiction.
(b) If any action or claim is filed in contravention of the arbitration rules provided in paragraph 13(a), the parties agree to personal jurisdiction and venue in the state and federal courts of Massachusetts, Suffolk County, and both waive the right to a jury trial. All claims filed or brought contrary to paragraph 13(a) are improperly filed, and the non-filing party is entitled to recover all attorneys fees and costs relating to dismissal of the improperly filed claim incurred after the non-filing party has given notice in writing of the improperly filed claim.
14. DIGITAL MILLENNIUM COPYRIGHT ACT
positiveprospect.com will respond to legitimate requests under the Digital Millennium Copyright Act (“DMCA”), and retains the right to deny service to any user if in positiveprospect.com’s sole discretion, the usage or content poses a risk of allegations of infringement of the copyright (or other intellectual property right) of others. If you become aware of user content on positiveprospect.com’s site and service that infringes your copyright rights, you may submit a properly formatted DMCA request (see 17 U.S.C. § 512) to positiveprospect.com’s DMCA agent.
15. TERMINATION OF ACCESS
(a) positiveprospect.com may refuse to provide its site and service to you, in full or in part, effective immediately and without notice, for any reason or no reason, but especially if positiveprospect.com believes that you (or any others whom positiveprospect.com believes that you act in concert with) have violated or will violate any laws, rights, or term (or the spirit of any term) of any agreement you are a party to with Positive Prospect, its affiliates, contractual partners, or users; or if Positive Prospect believes in its sole discretion that your use of the site and service may create any risk (including any legal risk) for positiveprospect.com, its affiliates, contractual partners, or users. Limitation of access may include removal or modification of content that you have uploaded or otherwise sent to or through the site and service.
(b) If positiveprospect.com exercises its rights under Section 15(a), or if you delete your account, this entire agreement and any other agreements you have entered into with positiveprospect.com will survive indefinitely until otherwise terminated according to their terms, if applicable.
(a) Entire Agreement. This agreement (along with other policies found on positiveprospect.com’s site and service) contains the entire agreement between the parties and replaces all prior oral and written agreements. No oral modifications, express or implied, may change the terms of this agreement. The parties have not relied on any representations or promises relating to the subject matter of this agreement except those contained within the four corners of this agreement.
(b) Relationship of Parties. This agreement and other agreements relating to the site and service do not constitute a joint venture, partnership, agency, employment or fiduciary relationship between the parties, except when one is expressly stated. Neither party nor its agents have any authority to bind the other party, and the relationship of the parties is that of buyer and seller, or independent contractors in certain circumstances.
(c) Successors, Assignment, and Delegation. This agreement inures to the benefit of and binds the successors, assigns, heirs, executors and administrators of the parties. However, you may not assign or delegate any right or duty under this agreement without written consent from positiveprospect.com. Any attempt to do so is null and void. If there is an involuntary assignment, then positiveprospect.com may reasonably request documentation from your successors or estate to prove that an involuntary assignment of your rights under this agreement has actually taken place.
(d) Means of Notice. Written notices and other communications described herein may be made electronically and are effective when sent or published. You guarantee that the information provided in your orders or user account is accurate and hereby waive all rights or objections relating to not having received notices from positiveprospect.com because of incorrect or incomplete information.
(e) Enforceability and Severability. If any provision of this agreement is held invalid or unenforceable, the remainder of this agreement will remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it will remain in full force and effect in all other circumstances.
(f) Waivers. Waivers are only effective when in writing. If positiveprospect.com waives enforcement of a breach of any term of this agreement, later breaches of the same or other terms are not waived. Accepting late performance of any act or late fulfillment of any condition of this agreement is not a waiver of the act or condition itself.
(g) Interpretation Rules. “Or” when used in a group of phrases or nouns intends to include any combination of all or any of the items in the group, and not merely one member or the other of such a group. When “includes” or “including” begins a list of items, the list is not exclusive. All headings used in this agreement are for convenience only, and are not to be taken into account when interpreting the meaning of any term of this agreement.
(h) Conflicts. If there are any conflicts between this agreement and another agreement between you and positiveprospect.com, then the terms of that other agreement will control only to the extent they are inconsistent. Otherwise, any additional terms are supplementary to the terms of this agreement.
(i) Reservation. positiveprospect.com reserves all rights not expressly granted in this agreement.
(j) No Third-Party Beneficiaries. This agreement does not and is not intended to confer any rights or remedies upon any person(s) other than the parties.
(k) Minimum Age. Persons under the age of 13 may not use the site. positiveprospect.com will not collect, use, or disclose any personal information associated with a person under age 13.
(l) Retroactive Application. You agree that your acceptance of this version of this agreement and all other agreements incorporated by reference apply retroactively to your use of the site and service prior to the effective date of this agreement.