Terms of Service
Effective Date: April 11, 2007
Welcome to the Upwithcupcakes.com website, which is located at upwithcupcakes.com (the “Website”). This Terms of Service (“TOS”) contain the terms and conditions that govern your use of the Website and the Upwithcupcakes.com Service (as defined below). This TOS describes your rights and responsibilities and what you can expect from the Upwithcupcakes.com Service. Use of the Upwithcupcakes.com Website constitutes your acceptance of and agreement to this TOS.
Upwithcupcakes.com 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 Upwithcupcakes.com 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 Upwithcupcakes.com Service. Your continued use of the Upwithcupcakes.com Website following posting of a change notice or new TOS on the Upwithcupcakes.com Website will constitute binding acceptance of the changes.
1. The Upwithcupcakes.com Service.
Upwithcupcakes.com provides a number of Internet-based services through the Website (all such services, collectively, the “Upwithcupcakes.com Service”). One such service enables users to create customized products, including without limitation, merchandise, books, compact discs, VCDs, and CD-ROMS (collectively, “Products”). Upwithcupcakes.com users may create and purchase individual Products for their own use or sell Products through their own page on the Website (“Shops”). Users who would like to sell Products through Shops must enter into the Shopkeeper Agreement. Upwithcupcakes.com allows all users to browse the Website and purchase Products from the Shops. Upwithcupcakes.com 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 Upwithcupcakes.com Service.
2.1 Eligibility. Upwithcupcakes.com will only knowingly provide the Upwithcupcakes.com 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 Upwithcupcakes.com Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The Upwithcupcakes.com 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 Upwithcupcakes.com Service and the Website.
2.3 Your License to Use the Web Site and the Upwithcupcakes.com Service.
(a) Upwithcupcakes.com solely and exclusively owns all intellectual property and other rights, title and interest in and to the Upwithcupcakes.com Service and Website, except as expressly provided for in these TOS. For example and without limitation, Upwithcupcakes.com owns the trademarks UPWITHCUPCAKES(SM), UPWITHCUPCAKES.COM, UPWITHCUPCAKES.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 Upwithcupcakes.com Service. You will not acquire any right, title or interest therein under this TOS or otherwise to any intellectual property owned by Upwithcupcakes.com.
(b) Upwithcupcakes.com grants you a limited revocable license to access and use the Website and the Upwithcupcakes.com 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 Upwithcupcakes.com; to compete with Upwithcupcakes.com; 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, Upwithcupcakes.com 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 Upwithcupcakes.com Service as expressly permitted by Upwithcupcakes.com. You may not cause harm to the Website or the Upwithcupcakes.com Service. Specifically, but not by way of limitation, you may not: (i) interfere with the Upwithcupcakes.com 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 Upwithcupcakes.com Service; (iii) 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; (iv) collect electronic mail addresses or other information from third parties by using the Upwithcupcakes.com Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Upwithcupcakes.com’s name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the Upwithcupcakes.com Service; or (viii) 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 Upwithcupcakes.com’s 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 Upwithcupcakes.com Service, Upwithcupcakes.com 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 Upwithcupcakes.com 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. Upwithcupcakes.com 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.
4.3 Licensing Your Content to Upwithcupcakes.com. You will retain ownership of the Content that you upload to the Website. You hereby grant to Upwithcupcakes.com a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as Upwithcupcakes.com deems necessary to enable you to use the Create & Buy Service to create, produce and purchase Products. Upwithcupcakes.com may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of providing the Upwithcupcakes.com Service, processing your order, and producing and shipping your Products.
5. Reservation of Rights.
5.1 Monitoring. Upwithcupcakes.com reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If Upwithcupcakes.com determines, in its sole and absolute discretion, that you or another Upwithcupcakes.com user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, Upwithcupcakes.com 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. Upwithcupcakes.com reserves the right to modify the organization, structure or “look and feel” of the Upwithcupcakes.com Service or the Website, and may change, suspend, or discontinue any aspect of the Upwithcupcakes.com Service at any time without any liability to you or any third party. Upwithcupcakes.com shall have complete discretion over the features, functions, prices and other terms and conditions on which the Upwithcupcakes.com Service is offered to Upwithcupcakes.com 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 Upwithcupcakes.com permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that Upwithcupcakes.com will have no obligation to keep any Submissions confidential. You will not bring a claim against Upwithcupcakes.com based on “moral rights” or the likes arising from Upwithcupcakes.com’s use of a Submission. This Section does not apply to your Content that you use in connection with the Create & Buy Service or Shopkeeper Service.
7. Representations and Warranties.
7.1 Mutual Representations and Warranties. You represent and warrant to Upwithcupcakes.com and Upwithcupcakes.com 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 Upwithcupcakes.com that, in your use of the Upwithcupcakes.com 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 comply with all applicable laws, rules, and regulations. You further represent and warrant to Upwithcupcakes.com 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) Upwithcupcakes.com 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 Upwithcupcakes.com incurs in providing the Upwithcupcakes.com 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. UPWITHCUPCAKES.COM PROVIDES THE WEBSITE AND UPWITHCUPCAKES.COM SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. UPWITHCUPCAKES.COM DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, UPWITHCUPCAKES.COM 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. UPWITHCUPCAKES.COM 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. UPWITHCUPCAKES.COM 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 UPWITHCUPCAKES.COM 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 UPWITHCUPCAKES.COM TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
You must indemnify and hold Upwithcupcakes.com 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. If you have to indemnify Upwithcupcakes.com under this Section, Upwithcupcakes.com 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 Upwithcupcakes.com’s express written permission.
11.1 Termination. In its sole discretion, with or without notice to you, Upwithcupcakes.com may: (i) suspend, limit your access to or terminate your use of the Website and/or the Upwithcupcakes.com Service, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from Upwithcupcakes.com’s servers and directories and (iv) prohibit you from using the Upwithcupcakes.com Service and/or the Website.
11.2 Survival. Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until Upwithcupcakes.com chooses to terminate this TOS.
11.3 Effect of Termination. If you or Upwithcupcakes.com terminates your use of the Website or the Upwithcupcakes.com Service, Upwithcupcakes.com may delete any Content or other materials relating to your use of the Upwithcupcakes.com Service on Upwithcupcakes.com’s servers or otherwise in its possession and Upwithcupcakes.com 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 Upwithcupcakes.com, you must use the following addresses: 1850 Gateway Drive, Suite 300, San Mateo, CA 94404, TOS@upwithcupcakes.com. If Upwithcupcakes.com provides notice to you, Upwithcupcakes.com will use the contact information provided by you to Upwithcupcakes.com. 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 Upwithcupcakes.com Service will be exclusively resolved under confidential binding arbitration held in Santa Clara County, California, before and in accordance with the Rules of the American Arbitration Association, 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 Santa Clara County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Santa Clara County. Notwithstanding anything to the contrary in this Section 13, Upwithcupcakes.com 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 Upwithcupcakes.com. 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 Upwithcupcakes.com 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.