TERMS OF SERVICE
Terms of Service
Effective Date: JULY 4, 2018
These Terms provide that all disputes between you and Defiance 76/ Moreschi Illustration, Inc. will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution and Arbitration for the details regarding your agreement to arbitrate any disputes with Defiance 76/ Moreschi Illustration, Inc.
Modifications and Severability
We may make changes to these Terms from time-to-time. We will notify you of any material changes by sending you an email, or posting a notice on the home page of the Website, or posting a notice in your account when you first login after we have made changes. If you receive notification of a change in our Terms, you must review the new Terms carefully to make sure you understand our practices and procedures. You may not be able to receive notices from us if your cookies are not set to accept and/or are disabled. Your continued use of the Website following posting of a change notice or new Terms on the Website will constitute binding acceptance of the changes. If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, then any such offending term or condition shall be deemed severable and shall not affect the validity and enforceability of any of the remaining Terms.
Our Website and Services
We provide a number of Internet-based services through the Website (all such services, collectively, the "Services"). One such service enables users to create and purchase customized products, including without limitation, framed and unframed canvas prints (collectively, "Products") and/ or customized decorated apparel and other products such as, but not limited to, t-shirts, shorts, aluminum and wood signs, ceramic mugs, etc . Users may create and purchase individual Products for their own use through the Services. We may offer a number of additional services on the Website, such as galleries, message boards, contests, blogs, and newsletters, which may change from time-to-time.
All pages within this Website and any material made available for download are the property of DEFIANCE 76/ MORESCHI ILLUSTRATION, INC., or its licensors or suppliers, as applicable. The Website is protected by United States and international copyright and trademark laws. The contents of the Website, including, without limitation, the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Website (collectively, "Content") may not be copied, distributed, modified, reproduced, published, or used, in whole or in part, except for purposes authorized or approved in these Terms or in writing by DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, the Content, or other proprietary information (including images, text, page layout, or form) without our written consent. We will aggressively prosecute.
Use of the Website and Service
We will only knowingly provide the Services 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 Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The Services are not intended for children under the age of 13.
You must comply with all of the terms and conditions of these Terms, the applicable agreements and policies referred to in these Terms, and all applicable laws, regulations, and rules when you use the Services and the Website.
You are prohibited from violating or attempting to violate the security of the Website, including, without limitation, (i) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (ii) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization; or (ii) accessing or using the Website or any portion thereof without authorization in violation of these Terms or in violation of applicable law. You may not collect or use information contained on the Website for the prohibited purposes, to compete with us, to create derivative works based on the Content of the Website, or download or copy the Website (other than page caching).
In the event access to the Website or a portion thereof is limited requiring an account with a username and password ("Protected Areas"), you agree to access Protected Areas using only your account as provided to you by Defiance 76/ Moreschi Illustration, Inc. You agree to protect the confidentiality of your username and password, and not to share or disclose your username or password to any third party. You agree that you are fully responsible for all activity occurring under your account. Your access to the Website may be restricted or revoked by us at any time with or without cause.
We may use third parties to provide certain services accessible through the Website. We do not control those third parties or their services, and you agree that we will not be liable to you in any way for your use of such services. These third parties may have their own terms of service and other policies. You must comply with such terms and policies as well as these Terms when you use those services. If any such terms or policies conflict with these Terms, or any other agreements or policies, you must comply with these Terms, and such other agreements and policies, as applicable.
You may purchase Products and Services on the Website. We accept all major credit cards issued by U.S. banks. If you purchase any Products or Services, you agree to do so in accordance with instructions provided on the Website, and agree to comply with any additional terms that may be provided. For your convenience, you will not be charged until your payment method is authorized and the order information is verified for accuracy. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. You represent and warrant that if you are making online payments that (i) any credit card, debit card, and bank account information you supply is true, correct, and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
You may only use the Website and Services only as expressly permitted by Defiance 76/ Moreschi Illustration, Inc . You agree to not cause harm to the Website or Services. Specifically, but not by way of limitation, you may not: (i) interfere with the Website or Services 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 Services; (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 Services; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain our name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the Services; (viii) deep-link to any feature or content on the Website, bypass our security, robot exclusion headers, or other; or (viii) assist or encourage any third party in engaging in any activity prohibited by these Terms.
Accuracy and Integrity of Information
Although we attempt to ensure the integrity and accurateness of this Website, we make no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Website, Services, or Content therein. It is possible that the Website could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Website by third parties. In the event that an inaccuracy arises, please inform us so that it can be corrected. Information contained on the Website may be changed or updated without notice. Additionally, we shall have no responsibility or liability for information or Content posted to the Website from any third party not affiliated with Defiance 76/ Moreschi Illustration.
We have made significant efforts to accurately display the images of our Products that appear on the Website and the Content. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
In the event a Product or Service is listed at an incorrect price due to typographical error or error in pricing information received from third parties, we shall have the right to refuse or cancel any orders placed for the Product or Service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall issue a credit to your credit or debit card account for the amount of the canceled order.
We reserve the right to modify the organization, structure, or "look and feel" of the Website or Services, and may change, suspend, or discontinue any aspect of the Website or Services at any time without any liability to you or any third party. We shall have complete and exclusive discretion over the features, functions, prices, and other terms and conditions on which the Website and Services are offered to you.
All items purchased through this Website are made pursuant to a shipment contract. Title and risk of loss for all products ordered by you shall pass to you on our shipment to the shipping carrier. We reserve the right to ship partial orders.
For shipments to Canada, you authorize UPS Canada as chosen by Defiance 76/ Moreschi Illustration, Inc. to act as your agent and to transact business with the Canada Border Services Agency ("CBSA") to clear any merchandise, account for duties and taxes, return merchandise, and prepare and submit refund claims on your behalf for any merchandise that is returned. You acknowledge and agree that the CBSA shall send any refund of duties and taxes that were paid on the returned merchandise to the broker, and that you will obtain the refund directly from Defiance 76/ Moreschi Illustration, Inc. You authorize the custom broker to endorse any refund check issued by the CBSA in your name, so that Defiance 76/ Moreschi Illustration, Inc. may be reimbursed.
Any and all products available for purchase or license on the Website are subject to the export control laws and regulations of the United States and any other countries, as applicable. In purchasing any of the products, you agree not to dispose through export, re-export, trans-shipment, or otherwise, of any product purchased or licensed from or through Defiance 76/ Moreschi Illustration, Inc., except in accordance with all applicable export control laws and regulations.
Representations and Warranties
You represent and warrant to Defiance 76/ Moreschi Illustration, Inc. (i) that you have the full power and authority to enter into and perform under these Terms, (ii) the execution and performance of your obligations under these Terms does not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, and (iii) these Terms are a legal, valid, and binding obligation of you, enforceable in accordance with its terms and conditions.
You represent and warrant to Defiance 76/ Moreschi Illustration, Inc. that, in your use of the Website and Services, (i) you will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity, or any other legal right of any third party; (ii) you will comply with all applicable laws, rules, and regulations; (iii) there are no claims, demands, or any form of litigation pending, or to the best of your knowledge, threatened against you with respect to any of the User Generated Content or Submissions; (iv) Defiance 76/ Moreschi Illustration, Inc. will not be required to make any payments to any third party in connection with its use of the User Generated Content or Submissions; (v) the use of any instructions, formulae, recommendations, or the like contained in the User Generated Content or Submission will not cause injury to any third party; and (vi) the User Generated Content or Submissions does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
You agree to indemnify and hold us, Defiance 76/ Moreschi Illustration, Inc., and our representatives, agents, affiliates, directors, officers, managers, and shareholders (the "Parties") harmless from and against any damage, loss, and expense (including, without limitation, attorneys' fees, expenses, and costs) incurred in connection with any third-party claim, demand, or action ("Claim") brought against any of the Parties (i) alleging that you have breached any provision of these Terms or any applicable laws, rules, or regulations through any act or omission, (ii) arising out of any User Generated Content you post or allow to be posted to the Website or any Submissions, or (iii) arising out of your use or access of the Website, or access by anyone accessing the Website using your account.
For any indemnification under this Section, Defiance 76/ Moreschi Illustration, Inc. 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 Defiance 76/ Moreschi Illustration, Inc.s' express written permission.
Disclaimers and Exclusions
DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. PROVIDES THE WEBSITE AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.
DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, SERVICES, OR ITS USE: (I) WILL BE UNINTERRUPTED; (II) WILL BE FREE OF INACCURACIES OR ERRORS; (III) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE WEBSITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE, WEBSITE-RELATED SERVICES, AND LINKED WEBSITES. DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD, AND DISTRIBUTED BY DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
Limitation of Liability
DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. AND ANY THIRD PARTIES MENTIONED ON THE WEBSITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, SERVICES, CONTENT, OR INFORMATION CONTAINED WITHIN THE WEBSITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE WEBSITE AND/OR THOSE SERVICES.
All notices required or permitted to be given under these Terms will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail; (ii) nationally-recognized overnight courier; or (iii) electronic mail. If you give notice to us, you must use the following addresses: Copyright Manager. MORESCHI ILLUSTRATION, INC. P.O. Box 677818, Orlando, Florida 32867. If we provide notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (a) if by delivery by U.S. mail, seven (7) business days after dispatch, (b) if by nationally-recognized overnight courier, on the date receipt is confirmed by such courier service, or (c) 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.
Copyright Infringement Claims
We disclaim any responsibility or liability for copyrighted materials posted on the Website or through our Services. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below:
We respect the intellectual property rights of others and expect our users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to our designated copyright agent.
Notices of Alleged Infringement for Content Made Available on the Website
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Website by sending us a notice ("Notice") complying with the following requirements.
1. Identify the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Website where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
5. Provide your full legal name and your electronic or physical signature.
The Notice should be delivered to the following designated copyright agent:
Moreschi Illustration, Inc., P.O. Box 677818, Orlando, Florida 32867
A poster of allegedly infringing material may make a counter notice pursuant to the DMCA. When we receive a counter notice, we may reinstate the material in question. To provide a counter notice to us, please provide the following information to our designated copyright agent.
1. Identification of the material that has been removed or to which access has been disabled on the Website and the location at which the material appeared before it was removed or access to it was disabled.
2. A statement as follows: "I hereby state under penalty of perjury that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled."
3. Your name, address, telephone number and, if available, email address.
4. A statement as follows: "I hereby consent to the jurisdiction in the state or federal courts located in Florida, and I will accept service of process from the complaining party who notified us of the alleged infringement or an agent of such person."
5. Provide your full legal name and your electronic or physical signature.
The Counter Notice should be delivered to the following designated copyright agent:
Moreschi Illustration Inc. P.O. Box 677818, Orlando, Florida 32867
Dispute Resolution and Arbitration
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. If you have a concern about your purchase or any other issue, please call DEFIANCE 76/ MORESCHI ILLUSTRATION, INC.'s customer service. In the unlikely event that DEFIANCE 76/ MORESCHI ILLUSTRATION, INC. is unable to resolve a complaint you may have to your satisfaction, then you and Defiance 76/ Moreschi Illustration, Inc. each agree to be bound by these dispute resolution procedures.
You and Defiance 76/ Moreschi Illustration, Inc. each agree that any dispute, claim, or controversy arising out of or relating in any way to your use of the Website, your ordering of Products or Services from Defiance 76/ Moreschi Illustration, Inc. or its affiliates through the Website, by phone, or through third-party websites offering Defiance 76/ Moreschi Illustration, Inc. Products or Services shall be determined by binding arbitration.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO BRING AN ACTION IN COURT OR BEFORE AN ADMINISTRATIVE AGENCY. ARBITRATION IS MORE INFORMAL THAN COURT OR ADMINISTRATIVE PROCEEDINGS. ARBITRATION USES A NEUTRAL ARBITRATOR TO DECIDE A DISPUTE INSTEAD OF A JUDGE OR JURY. AN ARBITRATOR'S AWARD IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES). AN ARBITRATOR IS ALSO BOUND BY THESE TERMS TO THE SAME EXTENT AS A COURT.
WE EACH ALSO AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS OF ANY NATURE OR IN ANY FORUM WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THIS MEANS THAT YOU MAY NOT BRING A CLAIM ON BEHALF OF A CLASS OR ANY PERSON OTHER THAN YOURSELF. UNLESS OTHERWISE AGREED IN WRITING BY BOTH YOU AND CIRCLE GRAPHICS, AN ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT CONDUCT ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD RELIEF OTHER THAN ON AN INDIVIDUAL BASIS.
To begin an arbitration proceeding, you must send a demand to the American Arbitration Association ("AAA") describing your claim and serve a copy of the demand on our registered agent Copyright Manager, Moreschi Illustration, Inc., P.O. Box 677818, Orlando, Florida 32867. The arbitration will be conducted by the AAA under its Commercial Arbitration Rules and Mediation Procedures, and for disputes arising from or related to the purchase of products or services for personal or household use the AAA's Consumer Arbitration Rules will apply. AAA and the arbitrator will determine the appropriate rules that may apply as from time to time amended. The AAA's rules and the form for filing an arbitration claim are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Defiance 76/ Moreschi Illustration, Inc. will reimburse those fees (but not any attorney's fees) for arbitration claims seeking less than $10,000 unless the arbitrator determines your claims are frivolous. Additionally, Defiance 76/ Moreschi Illustration, Inc. will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed upon location. The arbitrator shall be bound by these Terms.
As an alternative to arbitration, you may elect to submit a claim to a small claims court if the claim qualifies, but any filing or other fees will be your responsibility.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial, unless such waiver is unenforceable. This means that any claim in court would be decided by a judge, not a jury.
We also each agree that you or Defiance 76/ Moreschi Illustration, Inc. may bring suit in court to seek temporary provisional relief such as to enjoin infringement or other misuse of intellectual property rights.
THIS AGREEMENT EVIDENCES A TRANSACTION IN INTERSTATE COMMERCE, AND THUS THE FEDERAL ARBITRATION ACT AND APPLICABLE FEDERAL LAW GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE TERMS AND ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE AND SERVICES, INCLUDING, BUT NOT LIMITED TO, PRODUCTS AND SERVICES ORDERED OR PURCHASED THROUGH THE WEBSITE. IN THE ABSENCE OF APPLICABLE FEDERAL LAW, THEN THE INTERNAL LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES) WILL GOVERN.