Effective September 9, 2020
USE OF THE SITE; SITE POLICIES
1. Acceptance of Terms:
1.1. FIITG INC. (“FIITG,” “US” OR “WE”) PROVIDES ITS WEBSITES, MOBILE SITES, MARKETPLACE LISTINGS, MESSAGING FUNCTIONS, AND/OR APPS (i) OWNED OR OPERATED BY OR FOR FIITG, OR MANAGED BY A Fiitg-OWNED ACCOUNT, OR (ii) ON FIITG-BRANDED PAGES ON WHICH PRODUCTS ARE DISPLAYED AND POSTED FOR SALE (COLLECTIVELY, “SITE”) TO YOU SUBJECT TO THE FOLLOWING USER AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE. YOUR USE OF THIS SITE SHALL BE DEEMED TO BE YOUR (AND IF ACTING ON BEHALF OF A THIRD PARTY OR YOUR EMPLOYER, SUCH THIRD PARTY’S OR EMPLOYER’S) AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW (REFERENCES IN THIS AGREEMENT TO “YOU” INCLUDE YOU AND ANY SUCH THIRD PARTY OR EMPLOYER). FIITG CAN CHANGE THIS AGREEMENT AT ANY TIME BY POSTING AN UPDATED USER AGREEMENT ON THIS SITE AND FIITG MAY SEND REGISTERED USERS AN EMAIL NOTICE OF THECHANGES. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL CEASE USING THIS SITE. IF YOU DO NOT CEASE USING THIS SITE, YOU WILL BE CONCLUSIVELY DEEMED TO HAVE ACCEPTED THE CHANGES. IF YOU HAVE ANY QUESTIONS ABOUT THE AGREEMENT, YOU MAY CONTACT US AT [email protected] or phone: (707) 394-5358.
1.2. “Content” (i) means any and all artwork, assets, audio clips, data, designs, digital images, drawings, elements, graphics, images, information, metadata,
photographs, Product specifications, sketches, stitch files and text, or any combination thereof that you send to Fiitg for placement on the Site or on physical or electronic products made by or for Fiitg (“Products”); and (ii) includes both Primary and Secondary Content (as defined in the Designer License Agreement) for distribution or sale on a physical Product in the Marketplace on the Site (“Marketplace Products”). If your Content is “Posted for Sale,” “Posted for Download,” or “Posted for Use” (collectively, “Public Products”) as a design for Products available to other visitors to the Site, (“User(s)”), or in a promotion therefor or depiction thereof, you grant the additional rights set forth in the Designer License Agreement that is incorporated herein by this reference. Your participation in Fiitg’s Associates Program is also governed by the terms and conditions of the Associates Agreement that is incorporated by this reference herein. If you act as an Associate or a Designer (as these terms are defined in the Associates Agreement and Designer License Agreement, respectively) in accordance with either the Designer License Agreement or the Associates Agreement, then the terms of the Volume Bonus Agreement that are incorporated by this reference herein also apply. In addition,
2. User Account, Password, and Security
2.1. To complete your registration for your Fiitg account (“Account”), you must provide an email address, a password, and payment and tax information, as necessary. You are responsible for maintaining the confidentiality of your password and Account, and are responsible for all activities that occur under your password or Account. It is important for you to protect against unauthorized access to your device. Be sure to log off when you finish using a shared device.
2.2. You agree to (a) immediately notify Fiitg of any unauthorized use of your Account or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. Fiitg cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
3. User Conduct, Acknowledgements and Agreements:
3.1. In using this Site, you agree to not:
3.1.1. upload, download, post, email, message or otherwise transmit any Content that may be unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, profane, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically, socially, politically, legally, morally, religiously objectionable or otherwise objectionable, or invasive of another’s rights including but not limited to rights of celebrity, privacy and intellectual property;
3.1.2. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
3.1.3. upload, download, post, email, message or otherwise transmit any Content that may violate or infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. As a guideline, you may contribute only original work that you have created yourself from original elements. This means you can’t use images of celebrities or corporate products, nor images, text, or designs that you’ve copied from a website or search engine without written permission from the owner. You cannot create a “new” image using elements from images other people have created. You cannot contribute a quote or a slogan that is substantially the same as something already written by someone else. By uploading any Content, you represent and warrant that you have the lawful right to reproduce and distribute
such Content and that the Content complies with all applicable federal, state and local laws, regulations and ordinances;
3.1.4. upload, download, post, email, message or otherwise transmit any Content that may constitute or encourage a criminal offense, illegal activity, violate the rights of any party, or that may otherwise create liability or violate any local, state, national, or international law;
3.1.5. use the Service to harm minors in any way, including, but not limited to, uploading Content that may violate child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
3.1.6. upload Content that may be seen as condoning or encouraging unsafe practices that would result in the physical, mental or moral harm of children;
3.1.7. upload, download, post, email, message or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation;
3.1.8. upload, download, post, email, message or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, facilitate unauthorized access to, or limit the functionality of any computer software or hardware or telecommunications equipment;
3.1.9. remove, alter, obscure, or otherwise degrade watermark(s) or similar security measures that appear on images copied from or linked to by the Site;
3.1.10. upload, download, post, email, message or otherwise transmit false or misleading information;
3.1.11. disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers, or networks connected to or
accessible through the Site or affiliated or linked websites;
3.1.12. access, tamper with or use non-public areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution;
3.1.13. disrupt or interfere with the enjoyment of any other Users of the Site or affiliated or linked websites;
3.1.14. embed, copy, mirror, forward-to, or otherwise replicate any part of Fiitg’s websites or applications, except as permitted in writing by Fiitg;
3.1.15. incorporate images, faces, likenesses or names of any celebrity, public figure, or individual who does not want their name, likeness, or image used, in any way that would violate a person’s right of privacy or publicity;
3.1.16. use a manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service;
3.1.17. transfer your Fiitg Account to another party without Fiitg’s written consent;
3.1.18. copy, modify or distribute, except as otherwise allowed by Fiitg herein or on the Site, any (i) Content, (ii) services or tools, or (iii) Fiitg’s
copyrights and trademarks, from the Site;
3.1.19. upload and/or exploit any other User’s Content (including Collaborative Content, as applicable), on the Site or elsewhere, for use by others; or
3.1.20. harvest or otherwise collect information about Users, including names and email addresses, without their consent.
3.2.3. You are responsible for actions and communications undertaken under your Account. Fiitg takes no responsibility and assumes no liability for any Content uploaded or otherwise transmitted by or to you or by or to any third-party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, infringement, obscenity, pornography or profanity you or a third party may encounter. You agree to waive any claims against Fiitg and its affiliates, contractors, agents and employees for losses, damages and injuries that are based on or relate to your communications or Content on the Site. You agree to indemnify Fiitg and its affiliates from all claims and expenses, including reasonable attorneys’ fees, which claims are based on or arise from your violation of any of the provisions of this Agreement, except with respect to Fiitg’s own negligence.
3.2.4. Your use of this Site and of any Products ordered, either for purchase or download (“Orders”) on this Site must (i) be in accordance with all applicable United States federal, state and local laws, statutes, regulations and ordinances and (ii) will not harm or violate the rights of any person or entity.
3.2.5. When a User clicks the “Download” button on the Site to download Content utilizing Public Products that the Content-owner has chosen to publish for download, the User is granted the following licenses to use the Content (collectively, “Download License”):
184.108.40.206. In Social Media post(s), profile page(s) or as profile image(s);
220.127.116.11. In digital social/community communications, including but not limited to invitations, save the dates, and announcements;
18.104.22.168. In digital advertising, editorial and/or promotional projects, presentations (including film and video presentations), catalogues, posters, signage,
packaging, and brochures;
22.214.171.124. In digital projects for school or university;
126.96.36.199. As decorative background on a personal computer, tablet or mobile device;
188.8.131.52. In digital publications, including web pages, blogs, and ebooks; and
184.108.40.206. Digital prints, posters and other reproductions for personal or promotional purposes.
220.127.116.11. The Uses specified in Sections 18.104.22.168 through 22.214.171.124 may be printed: (i) onto physical Products through the Site according to this Agreement, or printed by Users using personal printers, without further restriction; or (ii) onto physical versions using commercial printers subject to Section 126.96.36.199 hereof.
188.8.131.52. This Download License does not include the right to display the Content for download or export, resell, license or otherwise distribute for profit that
Content, including, without limitation, through other print-on-demand services, and you hereby agree not to use the Content in any such manner that competes with Fiitg’s business.
3.2.6. Fiitg does not endorse any Content submitted to the Site by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and Fiitg expressly disclaims any and all liability in connection with Content. Without limiting the foregoing, Fiitg and its designees shall have the right to
remove, without prior notice, any Content that they believe may violate the Agreement, is subject to complaint, or is otherwise objectionable to Fiitg. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
3.2.7. You will not use any Product distributed and/or ordered from the Site in a way that would be damaging to Fiitg’s public reputation or that of its employees, board members, shareholders, licensors, or partners. Additionally, you acknowledge that if you choose to display any Product ordered from Fiitg, in a public setting, including on the Internet, in a way which disparages Fiitg, Fiitg’s board members, employees, shareholders, licensors, or partners, Fiitg reserves the right to demand immediate return of the Product, and to furthermore pursue all recourses and remedies available under the law.
3.2.8. The Site may provide, or third parties may provide, links to other websites or resources. Because Fiitg has no control of such sites and resources, you
acknowledge and agree that Fiitg is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources or the policies of such sites and resources. Fiitg is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
4. Our Community:
4.1. Our community is the most important part of Fiitg. All registered Users (“Members”) are part of our community and we value everyone. Fiitg has established multiple ways for Members to interact with one another on the Site, including but not limited to forums, messaging, our blog and other social media channels. Please remember that these are public spaces, so use common sense when sharing personal information. Fiitg’s role is to facilitate open discussion and support our community through constructive communication. We have some general rules for community conduct, and some spaces have additional rules:
4.1.1. Treat one another with respect. There is a real person behind each name.
4.1.2. Harassing, insulting, embarrassing or abusing other Members is unacceptable.
4.1.3. The community spaces are not the appropriate channel to express disputes with others.
4.1.4. Specific transactions and/or feedback should not be discussed in public community spaces. Instead, contact Fiitg privately if you need help with a
4.1.5. Do not publicly post another person’s private information without their explicit consent (for example: email, messaging transcripts, conversations, letters, phone numbers, addresses or full names).
4.2. Violating community policies may result in suspension or termination of certain privileges including Account termination.
In order to facilitate communication between members of our User community, Fiitg offers messaging (i.e., email, messaging, video and Chat) functions that can be used between Users on certain parts of the Site, including our new Chat function (“Chat”).
5.1. Chat may allow Users to communicate via text, voice, video and/or other media. All text and/or any other media you input or upload in Chat shall be considered “Content,” as defined in Section 1.2 hereof.
5.2. All community rules described in Section 4 (Community) shall apply to your conduct on and through Chat.
5.2.1. You acknowledge that Fiitg will not pre-screen submitted Chat Content, and that you may be exposed to Content you find offensive or inappropriate. You will have the ability to (i) block any User from Chatting with you, and/or (ii) report that User to Fiitg.
5.2.2. If Fiitg decides, in its sole discretion, that your conduct on Chat violates this User Agreement, Fiitg may take action to enforce the Agreement, including but not limited to banning your ability to utilize Chat on the Site, and/or terminating your Account.
5.3. Users must have a valid Fiitg Account in order to participate in Chat, and Chats shall be between User Accounts (i.e., not between Stores). When using Chat, the name registered to your Fiitg Account will be visible to other Chat participants.
5.4. You should have no expectation of privacy when using Chat. Depending on the settings for each Chat, Content submitted may be viewable and/or editable by other Users, and by Fiitg. Chat sessions may be recorded and stored by Fiitg for up to ninety (90) days. Your use of Chat is consent to be recorded in this manner.
6.1. In order to facilitate cooperative Content creation between Users on the Site, Fiitg offers a collaboration function that can be used between Users on certain parts of the Site (“Collaboration”).
6.1.1 The Collaboration function allows Users to invite other Members to work together to create Content.
6.1.2. When using Collaboration, the name registered to your Fiitg Account will be visible to other Collaborators (as defined below), and Collaboration sessions may be recorded and stored for up to ninety (90) days. Your use of Collaboration is consent to be recorded in this manner.
6.1.3. Members may use Chat to aid in their Collaboration.
6.1.4. Any text and/or other media uploaded by Members (“Assets”) who participate in a certain Collaboration (each, a “Collaborator”) shall be considered
“Content,” as defined in Section 1.2 hereof.
6.1.5. Content resulting from a Collaboration, whether a “final” product or in-progress, shall be “Collaborative Content”.
6.1.6. Collaborators may create non-Public (i.e., for purchase by the Collaborator, not posted for sale on the Site) Products using the Collaborative Content.
6.1.7. Collaborations that utilize Public Products:
184.108.40.206. Collaborative Content may not be published on the Site (i.e., create “new” Public Products) if it utilizes Public Products by either: (i) being based upon Primary Content, or (ii) integrating Secondary Content.
220.127.116.11. COLLABORATORS DO NOT OBTAIN ANY COPYRIGHTS TO PUBLIC PRODUCTS THAT MAY BE USED IN A COLLABORATION.
6.1.8. Collaborations that utilize only User Content (i.e., non-Public Products):
18.104.22.168. The copyright to any Collaborative Content that results from a “new” Collaboration, whether a “final” product or in-progress (collectively, “Collaborative Content”) (i.e., starting from a blank template and not utilizing any Public Product(s), may be jointly owned by all Collaborators under 17 U.S. Code Title 17, but each hereby agrees that THE RIGHT TO EXPLOIT THE COPYRIGHT TO THE COLLABORATIVE CONTENT ON THE SITE, AS A “PUBLIC” PRODUCT SHALL BE EXCLUSIVE TO THE INITIATOR OF THE
RELEVANT COLLABORATION SESSION (“Collaboration Initiator”). EACH COLLABORATOR HEREBY GRANTS TO THE COLLABORATION INITIATOR A NONEXCLUSIVE, PERPETUAL, WORLDWIDE, SUBLICENSABLE AND TRANSFERABLE RIGHT AND LICENSE TO USE, COPY, REPRODUCE, PREPARE DERIVATIVE WORKS OF, MODIFY, PUBLICLY DISPLAY, PERFORM AND DISTRIBUTE ASSETS AS CONTAINED IN THE COLLABORATIVE CONTENT ON THE SITE.
22.214.171.124.1. The Collaboration Initiator is only granted the aforementioned rights in the Collaborative Content, and not separately to any of the Assets provided by any other Collaborators.
126.96.36.199.2 COLLABORATORS WHO ARE NOT THE COLLABORATION INITIATOR HEREBY AGREE THAT THEY WILL NOT UPLOAD THE COLLABORATIVE CONTENT TO THE SITE AS A PUBLIC PRODUCT, AND
THAT DOING SO COULD BE GROUNDS FOR Fiitg, IN ITS SOLE DISCRETION, TO DELETE SUCH PRODUCT AND/OR TAKE OTHER ACTION UP TO AND INCLUDING DELETION OF SUCH COLLABORATOR’S Fiitg ACCOUNT.
6.2. Fiitg LIVE: Fiitg LIVE is a new offering/program, as defined under Section 9 hereof, that utilizes Collaboration and is governed by the Fiitg LIVE User Agreement.
7. Social Media
7.1. Fiitg may seek to promote its community and the Site by featuring your Content — on Products, videos, photos, or the like — on various social media
platforms. In addition to the rights you grant to Fiitg in this User Agreement and in the Designer License Agreement, you agree that your use of any variation of the hashtag(s) #FiitgShowandTell and/or #FiitgMade in your social media post(s) grants Fiitg the right and license to use that social media post and its contents in any of Fiitg’s social media channels, on the Site, and on affiliate channels.
7.2. Any image(s), accompanying text, social media handle, name, likeness, image, inquiries, feedback, suggestions, ideas or other information you provide to us by using any variation of the hashtag #FiitgShowandTell and/or #FiitgMade (collectively, “Tagged Media”) will be treated as non-proprietary and non-confidential.For good and valuable consideration, the receipt and sufficiency of which you hereby acknowledge, by uploading, posting, e-mailing or otherwise submitting Tagged Media to Fiitg, its social media account(s) and/or the Site, you grant, and you represent and warrant that you have the right to grant, to Fiitg an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to use, telecast, copy, perform, display, reproduce, edit, distribute, copy, change, modify, add to, subtract from and otherwise exploit the Tagged Media, or any portion thereof, in any manner (including without limitation promotional and advertising purposes) and in any media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such Tagged Media, and to grant and authorize sublicenses of the foregoing without any compensation to you or to any third party. For the sake of clarity, this license does not allow Fiitg to use your Tagged Media to create a Public Product.For the sake of clarity, this license does not allow Fiitg to use your Tagged Media to create a Public Product.
7.3. You also acknowledge that your Tagged Media will not be returned and Fiitg may use your Tagged Media, and any ideas, concepts or know-how contained therein or derived therefrom, for any purpose including advertising, promotional, marketing, publicity, trade or commercial purposes, without attribution, and without the requirement of any permission from or payment or other form of consideration to you or to any other person or entity.
7.4. By providing Fiitg with the Tagged Media, you warrant and represent that (i) you are eighteen (18) years of age or older; (ii) each person in the Tagged Media has given their written permission and consent to be included in the Tagged Media and displayed publicly on the Site and any Fiitg social media sites and marketing materials and advertising and that you shall furnish such permission and consents promptly to Fiitg upon request; and (iii) you agree to indemnify Fiitg and its affiliates for all claims arising from or in connection with any claims to any rights in any tagged Media or any damages arising from any Tagged Media.
7.5. Instagram?, Twitter?, and other similar social media forums are registered trademarks of their respective companies and not affiliated with Fiitg. Any Tagged Media via these or other similar social media sites are subject to all rules and regulations of such sites.
7.6. If you choose to submit your photo via mobile phone, standard data rates may apply.
9. New Programs:
Fiitg may introduce programs, features and Products, to specific Users or to the Site at large. At the time of release, Fiitg will publish the governing terms and conditions. You agree that you will be subject to such new terms and conditions to the extent that you participate in such new programs or use such new Products.
10. Extended Offerings:
Fiitg may offer your Products for sale via marketplace listings managed by Fiitg-owned accounts on other websites (collectively, “Extended Offerings”).
Royalties for Extended Offerings will be calculated on the basis of the amount received by Fiitg, which may be different from the amount charged by the
marketplace. You will have the option to opt out of such Extended Offerings in your Account settings.
11. Age and Geographic Restrictions:
11.1. You must be at least thirteen (13) years of age to use this Site. Please contact us if you have any concerns or questions about this restriction.
11.2. Certain Fiitg Products may only be shipped to limited geographic regions/countries.
12. International Access:
12.1. This Site may be accessed from countries other than the United States. This Site may contain Products or references to Products that are not available outside of the United States. Any such references do not imply that such Products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
12.2.You agree that Fiitg can translate, as accurately as reasonably possible, text and information that you provide into other languages for use on our foreign domains. We do not guarantee the accuracy of such translations.
13. Death or Incapacity:
13.1. In the unfortunate event that a member of our Maker and Designer community who is a natural person dies or becomes permanently incapacitated, Fiitg will take all necessary steps to work with their successors and assigns. However, Fiitg will need the following documentation from such deceased or incapacitated community member’s successors, assigns or their legal representatives for verification purposes:
13.1.1. Death Certificate;
13.1.2. Proof of Succession;
13.1.3. Power of Attorney.
13.2. In cases of members that are entities and if such entities cease to exist on account of dissolution, winding up, appointment of a receiver or bankruptcy, we will require the following documentary evidence:
13.2.1. Appointment of a receiver;
13.2.3. Bankruptcy proceedings;
13.2.4. Winding up proceeding.
13.3. Please notify us as soon as possible should you become aware of the death, incapacitation, dissolution, winding up or bankruptcy of a Maker or Designer member of our community.
15. Electronic Communications Delivery Policy
15.1. When you use the Site, or send emails and other communications to us from your desktop, mobile or any other electronic device, you are communicating with us electronically. You consent and agree to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that Fiitg may provide in connection with your Fiitg account (“Account”) and your use of Fiitg’s Site and services. Communications include:
15.1.2. Transaction receipts or confirmations;
15.1.3. Account statements and history;
15.1.4. Federal and state tax statements we are required to make available to you; and
15.1.5. Any other Account or transaction information.
15.2. We will provide these Communications to you by posting them on the Site and/or by emailing them to you at the primary email address listed in your Account settings.
15.3. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
16. No Resale:
Other than as expressly provided in this Agreement, you agree not to reproduce, duplicate, copy, sell, resell or exploit for other commercial purposes, any portion of the Site, without Zazzle’s express written consent.
17.1. You agree that Fiitg, in its sole discretion, may terminate this Agreement, in whole or in part, including but not limited to termination of your password, Account (or any part thereof) or use of the Site, and remove and discard any Content you may have contributed to the Site, at any time for any reason or no reason. Fiitg may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Fiitg may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files of the Site. Should Fiitg deactivate or delete your Account due to your violation of this Agreement in any way, as determined in Fiitg’s sole discretion, Fiitg reserves the right to withhold payment of any Royalties, Referral Fees or other monies associated with your Fiitg Account(s). Further, you agree that Fiitg shall not be liable to you or any third-party for any termination of your access to the Site. Should you object to any terms and conditions of the Agreement or become dissatisfied with the Site in any way, your only recourse is to immediately discontinue your use of the Site and/or terminate your Account.
17.2. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties
arising before the date of termination.
18. Fiitg is a marketplace where:
18.2. Product manufacturers (“Makers”) can offer, sell, and/or fulfill their Marketplace Products to Users of this Site.
18.1. Content owners/creators (“Designers”) may make their Content and/or Product specifications available for use in connection with the distribution or sale of certain Products; and/or
18.3. To help you distinguish among the different types of transactions available on this Site, Fiitg uses the following labels on each Product page on the Site:
18.3.1. “Made by Fiitg” and “Sold by Fiitg”: This means Fiitg is both (i) selling the Marketplace Product to you and (ii) making it or having it made for you.
18.3.2. “Made by [Maker]” and “Sold by Fiitg”: This means Fiitg is selling this Marketplace Product, but the Marketplace Product is made by a third party Maker.
18.3.3. “Made by [Maker]” and “Sold by [Maker]”: This means that an independent Maker is both making the Marketplace Product and selling it to you via the Fiitg Maker platform. The process for placing an order is the same as for Marketplace Products sold by Fiitg, but Fiitg is only facilitating the transaction. Fiitg has no control over the quality, safety, morality or legality of any aspect of the Marketplace Products sold to you by a Maker, the truth or accuracy of the listings, or the ability of the Maker to sell that product. Fiitg does not pre-screen the content or information provided by Makers for these Marketplace Products, and cannot ensure that a Maker will actually complete a transaction. Fiitg does not get involved in transferring legal ownership of these Marketplace Products from Maker to User, and cannot guarantee the true identity of Maker. Fiitg encourages you to communicate directly with potential transaction partners through the tools available on the Site. You understand and agree that Fiitg is only a venue for these transactions, and as such, you enter into these transactions at your own risk.
18.3.4. “Designed by [Designer]”: This label informs you of the Designer who has published its Content for use on Products on the Site. Designers represent that they have the right to publish their Content for use on Products, and Fiitg makes no representation as to the truthfulness of any such representations.
19. Product Descriptions:
19.1. Fiitg attempts to be as accurate as possible to provide a compelling User experience. There are many Designers on the Site and Fiitg does not verify the accuracy of their Product descriptions, which can include Product titles, descriptions, tags, categories and associated metadata. Fiitg does not warrant that Product descriptions or other Content of this Site is accurate, complete, reliable, current, or error-free. If a Product offered by Fiitg is not as described, please refer to Fiitg’s Shipping and Return Policy.
19.2. Fiitg prides itself on its relationships with charitable organizations and is pleased that its platform has proven to be an effective fundraising tool for
many organizations. From time-to-time, Fiitg participates in specific programs designed to assist charitable organizations to raise funds for their causes.Whenever Fiitg announces these fundraising efforts, you can be assured that Fiitg will ensure that funds will be remitted to the charitable organization as disclosed in such announcements. From time-to-time, Designers may state they intend to donate their royalties or other sums to charities: Fiitg is unable to verify such statements, so please use caution when relying on them.
20. Correction of Errors and Inaccuracies
20.1. The information and Product listings on this Site may contain design or typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information or Content at any time without prior notice (including after you have submitted your order). Please note that such errors, inaccuracies or omissions may relate to Product design, description, pricing and availability. We also reserve the right to limit or restrict quantities of Products (including after you have submitted your order) for any reason, including, without limitation, if the Product violates any terms of this Agreement.
20.2. In the event a Product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or Product information
received from our partners, we reserve the right to refuse or cancel any orders placed for Products 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 you have been charged for the sale. If you have already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account or refund the amount in the manner in which the purchase was made by you. If we have overcharged for any product, we will issue a refund to you for the difference between what you were charged and the correct price of the relevant product.
21. Pricing, Shipping, and Terms of Sale:
Prices for Products are described on the Site and are incorporated into this Agreement by reference. All prices are in U.S. dollars. Prices and Products may change at Fiitg’s discretion. Fiitg may offer promotional discounts from time-to-time. You must agree to the terms of the promotion in order to be given the discount, and Fiitg reserves the right to not honor promotional codes if we reasonably suspect abuse. You agree not to use more than one (1) discount per item, unless such use is expressly permitted by Fiitg. Title and risk of loss for all Products ordered by you shall pass to you on Fiitg’s shipment to the shipping carrier. Purchases are subject to Fiitg’s Shipping and Return Policy. Fiitg reserves the right to cancel any order for any Product that for any reason, including orders that may violate the intellectual property rights of a third party and will notify the purchaser that the order has been canceled.
22. Fiitg Embroidery
22.1. If you are using Fiitg Embroidery, your use of this Site is also subject to the terms and conditions set forth in this Section.
22.2. You agree to follow the restrictions below in order to purchase items through Fiitg Embroidery or to create any public Fiitg Embroidery Products for sale in the Fiitg marketplace. If you want your Content to be embroidered on a Product and you do not upload the stitch file to this Site, Fiitg will calculate the price to convert your Content to a stitch file and notify you of the price. For the stated fees, you can then order the stitch file and create a Product with the stitch file. If you create a public embroidery Product for sale in the marketplace, the Product will be published on the Site at the time the stitch file is completed (typically within 24-48 hours but it may be longer). Conversion of your Content to a stitch file is subject to a one-time stitch file conversion fee except that you must pay an additional one-time stitch file conversion fee for any resizing of the stitch file.
EARNINGS AND NON-CONTRIBUTING ACCOUNT FEES
23.1. If you participate as a Designer or Associate (as both terms are defined in the Designer License Agreement), only if and when Fiitg determines that your Account and Stores have remained in compliance with the Policies (as defined in Section 1.2 hereof) for the entirety of the period for which payment is made and through to the date that the payment is issued, Fiitg will pay royalties, referral fees, volume bonus and any other compensation owed to you (collectively, “Earnings”), subject to the following:
23.2. Fiitg maintains a statement of your Earnings. You may check your statement in the “My Account” section of your Account.
23.3. When Earnings are Earned and Payable: The following conditions must be met before Earnings are earned and payable by Fiitg to you (“Earned and Payable”):
23.3.1 Payment Threshold: Your Earnings must meet a Payment Threshold for the payment method you have chosen on your Payment Settings page (e.g., check or PayPal).
188.8.131.52. “Payment Thresholds” mean (i) $100 for payments by check and (ii) $50 for payments using PayPal. Payment Thresholds are subject to change at any time or from time-to-time, in our sole and absolute discretion. You will be notified of any change in the Payment Thresholds.
184.108.40.206. You may request payment of your Earnings even if you have not met the Payment Thresholds, subject to payment of the following processing fees: $5.00 for any check under $100; or $2.50 for any PayPal transaction under $50 (collectively, “Processing Fees”).
220.127.116.11. Fiitg, in its discretion, may change the methods of payment that are available, and certain methods of payment may not be available for all balances.
18.104.22.168. Fiitg is subject to PayPal regulations and service restrictions – if PayPal does not provide service to you or within your desired country, it will be
necessary for you to select another payment method.
23.3.2. Provide All Necessary Information: You must provide Fiitg with all information necessary to process your Earnings payment (e.g., relevant tax information, proper PayPal account information).
22.214.171.124. In the event you have not provided us with this information, Fiitg may withhold payments until you have provided all necessary information.
126.96.36.199. In the event that a check sent to the address listed as the payee address in your Account is returned as undeliverable, Fiitg may withhold further payments until you have corrected or updated your address.
23.3.3. Have a Non-Negative Earnings Balance: If your payable Earnings become negative (including but not limited to for any of the following reasons), Fiitg reserves the right to not pay you Earnings until (i) your payable Earnings increase to the point where they become positive, and (ii) they become otherwise payable under the provisions of this Section 23:
188.8.131.52. If any of your Earnings are associated with Products that are or are alleged to be infringing of a third party’s rights or are otherwise in violation of the
Policies, Fiitg may do any of the following without providing a warning or prior notice: (i) deduct the associated Earnings from your Account; (ii) suspend your Account and payment of any Earnings; or (iii) deduct all Earnings and terminate your Account, if we determine (in our sole discretion) that you are a repeat infringer (See Section 27.9 hereof and our Designer License Agreement).
184.108.40.206. In the event that an order for which you were paid Earnings is either cancelled, returned or refunded for any reason, or if Products that generated a
referral fee are returned by the User, Fiitg will deduct the relevant amount from your Earnings.
23.4. Payment Timing:
23.4.1. Once Earnings are Earned and Payable, payment will be made within forty-five (45) days after the end of the relevant month.
23.4.2. Fiitg will pay your Earnings in accordance with the selections you make in the “Payment Settings” page in “My Account,” and Fiitg makes the following options available:
220.127.116.11. payment as soon as your Earnings have reached the Payment Thresholds set by Fiitg from time-to-time; or
18.104.22.168. payment prior to reaching the Payment Thresholds, subject to payment of the Processing Fees; or
22.214.171.124. have your Earnings held in your Account until you choose to have your payment made (after reaching the Payment Threshold set by Fiitg).
23.5. Fiitg may apply withholding tax rates to international and domestic payments that may potentially be higher than otherwise would be due, if Designers do not provide us with relevant documentation, such as the W9 or W8-BEN form(s).
23.6. Earnings in currencies other than your selected payment currency: (i) will be converted to your payment currency and are subject to foreign currency conversion fees; (ii) may be subject to Payment Thresholds, Processing Fees, and/or Non-Contributing Account Fees that are slightly different than the equivalent of what is detailed herein, due to currency conversion rates and/or the selected payment currency.
24. Non-Contributing Account Fees
24.1. You, Fiitg and the Site thrive best when we all contribute to provide the best Content and features to Users. As a result, your Account will be deemed a “Non-Contributing Account” if you haven’t either (i) published a Public Product, or (ii) had a Referral Sale (as defined in the Associates Agreement) attributed to your Account in the previous fifteen (15) month period.
24.2. Your Account may be deemed “contributing” again at any time, once you publish a Public Product or have a Referral Sale attributed to your Account.
24.3. Non-Contributing Accounts are subject to a monthly Non-Contributing Account fee (“Non-Contributing Account Fee”):
24.3.1. Fiitg will determine if your account is subject to the Non-Contributing Account Fee on midnight PST/PDT of the last day of the previous calendar month. For example, if your account is determined to be a Non-Contributing Account as of January 31st, but is deemed contributing again on February 1st, you will still be charged the Non-Contributing Account Fee in February.
24.3.2. If applicable, the Non-Contributing Account Fee will be deducted from your Account’s Earned and Payable Earnings prior to when Earnings are paid.
24.3.3. Once a Non-Contributing Account Fee has been deducted from your Account’s Earned and Payable Earnings, this deduction cannot be reversed or refunded.
24.3.4. Non-Contributing Account Fees cannot cause an Account’s Earned and Payable Earnings to become negative, so in the event that Earned and Payable Earnings are insufficient to cover the relevant Non-Contributing Account Fee being assessed, Earned and Payable Earnings will be deducted until the balance is equal to zero.
25. Trademarks and Copyrights:
Fiitg’s trademarks, trade dress and Product images may not be used in connection with any product or service that does not belong to Fiitg, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Fiitg. All other trademarks not owned by Fiitg that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Fiitg.
26. Proprietary Rights:
26.1. You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, or other material contained or distributed on or through the Site, by Fiitg, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use, distribute, or publish on the Site any Content received through the Site without the authorization of Fiitg or the Content owner. You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site: (i) in violation of applicable copyright and other intellectual property laws; and (ii) except as explicitly permitted by the Site.
26.2. You retain all ownership rights to your Content submitted to the Site. However, by submitting Content to Fiitg, (i) you grant Fiitg a nonexclusive, worldwide, royalty-free, sublicensable and transferable right and license to use, copy, reproduce, prepare derivative works of, modify, publicly display, perform and distribute your Content in connection with the Site and Fiitg’s (and any of its successors’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works we may create) in any media now known or hereafter developed; and (ii) you grant other Users the license rights detailed elsewhere herein (e.g., for Collaborative Content, per Section 6).
26.3. You acknowledge and agree that the Site and any software provided to you or used in connection with the Site, including, for example and without limitation, any API’s or other scripts (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
26.4. Subject to your compliance with the terms and conditions of this Agreement and any additional terms provided in a separate applicable agreement, Fiitg grants you a non-exclusive, non-transferable, non-sublicenseable license to use the Software solely as necessary to use this Site and provided that you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Site or the Software, in whole or in part.
26.5. Fiitg grants you a non-exclusive, revocable and limited license to use the Content and Fiitg’s tools, images, Product photographs for the purposes of promoting the Site in the condition that you provide appropriate attribution and a link to the Fiitg website. We reserve the right to terminate this license at any time.
26.6. The intellectual property rights in or relating to the content of any notes, messages, e-mails, postings, letters, ideas, suggestions, concepts or other written materials that you submit or communicate to Fiitg (excluding the Content you submit) will automatically be deemed to be assigned, granted and transferred by you to Fiitg upon their submission or communication to Fiitg, and you do assign all rights therein to Fiitg and agree that the same will automatically become the property of Fiitg and that Fiitg may use, exploit, copy, publish, implement, transfer and in all other ways deal with such materials and all of the intellectual property rights therein in any way and for any purpose Fiitg may elect, forever.
27. Intellectual Property Policy:
Fiitg respects the intellectual property rights of others. We ask our Users to do the same. Fiitg may terminate the accounts of Users who infringe, or may infringe, the copyright or other intellectual property rights of others. If you believe that your Content has been copied in a way that constitutes copyright and/or trademark infringement, please notify Fiitg’s Copyright Agent, and provide the following information (“Notice”):
27.1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright/trademark interest;
27.2. a description of the copyrighted work and/or trademark claimed to have been infringed;
27.3. a description of where the claimed infringing Content is located on our Site;
27.4. your address, telephone number, and email address;
27.5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright/trademark owner, its agent, or the law;
27.6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are authorized to act on behalf of the owner of the copyright/trademark interest involved.
27.7. Please note that this procedure is exclusively for notifying Fiitg that your trademark or copyrighted material has been infringed.
27.8. Fiitg’s Copyright Agent can be reached at: [email protected]
27.9. It is Fiitg’s policy (i) to respond expeditiously to valid, DMCA-compliant notifications of claimed copyright infringement by removing, or disabling access to, any material on our Site or service that is claimed to be infringing or to be the subject of infringing activity and, (ii) in appropriate circumstances, to terminate the accounts of those who we suspect to be repeatedly or blatantly infringing copyrights.
28. Reviews, Comments and Submissions
28.1. Except as otherwise provided elsewhere in this Agreement (See Section 26.2: “You retain all ownership rights to your Content submitted to the Site.”) or on the Site, anything that you submit or post to the Site and/or provide us, including without limitation, photos, videos, ideas, know-how, techniques, questions, reviews, comments, and suggestions (collectively, “Submissions”) is and will be treated as non-confidential and non-proprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you.
28.2. In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit with any review, Comment, or other Content, if any, in connection with such review, comment, or other content. You represent and warrant that you own or otherwise control all of the rights to the reviews, comments and other Content that you post on this Site and that use of your reviews, comments, or other Content by us will not infringe upon or violate the rights of any third party. You shall not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Submissions or Content. We may, but shall not be obligated to, remove or edit any Submissions (including comments or reviews) for any reason.
YOU REPRESENT AND WARRANT THAT: (i) YOU ARE THE OWNER, CO-OWNER AND/OR VALID LICENSEE OF THE CONTENT THAT YOU SUBMIT; (ii) THE CONTENT DOES NOT INFRINGE UPON THE
PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS (e.g., COPYRIGHTS AND TRADEMARKS) OR OTHER RIGHTS OF OTHERS; (iii) THERE ARE NO OUTSTANDING DISPUTES IN CONNECTION WITH
THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN THE CONTENT OR ANY PARTS OF THE CONTENT; (iv) THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED
AND DELIVERED BY YOU AND CONSTITUTES YOUR LEGAL, VALID AND BINDING OBLIGATION, ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS. YOU REPRESENT AND WARRANT THAT THE
EXECUTION, DELIVERY AND PERFORMANCE BY YOU OF THIS AGREEMENT ARE WITHIN YOUR LEGAL CAPACITY AND POWER; HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE ACTION ON YOUR PART;
REQUIRE THE APPROVAL OR CONSENT OF NO OTHER PERSONS; AND NEITHER VIOLATE NOR CONSTITUTE A DEFAULT UNDER THE (I) PROVISION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT
OR DECREE TO WHICH YOU ARE SUBJECT OR WHICH IS BINDING UPON YOU, OR (II) THE TERMS OF ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT APPLICABLE TO YOU OR BINDING UPON YOU.
You agree to defend, indemnify and hold Fiitg and Fiitg’s officers, directors, employees, agents and licensors harmless from all judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorneys’ fees, expert witness fees, and costs of litigation arising out of or based on (a) Content you submit, post to or transmit through the Site, (b) your use of the Site, (c) your connection to the Site, (d) your violation of the Agreement or (e) your violation of any rights of a third party, except with respect to judgments, awards, losses, liabilities, costs and expenses arising out of Fiitg’s own negligence.
31. DISCLAIMER OF WARRANTIES:
THIS SITE AND THE INFORMATION, SERVICES, PRODUCTS, CONTENT, PROGRAMS AND MATERIALS AVAILABLE THROUGH IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, SUBJECT TO
ANY EXPRESS WARRANTIES PROVIDED. IF FIITG PROVIDES A LIMITED EXPRESS WARRANTY FOR A PRODUCT THAT IS LESS THAN FOUR (4) YEARS IN DURATION, THEN THE DURATION OF ANY APPLICABLE IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THE LIMITED EXPRESS WARRANTY. IF FIITG DOES NOT PROVIDE AN EXPRESS WARRANTY, THEN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FIITG AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FIITG DOES NOT MAKE ANY WARRANTY THAT (A) THE SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, OR (B) THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, OR (D) THERE WILL BE NO UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, OR (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY. YOU AGREE THAT FIITG SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU IN CONNECTION WITH THE SITE OR ANY CONTENT CONTAINED THEREIN. YOU EXPRESSLY AGREE THAT USE OF THIS SITE, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, 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 LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, DATA AND/OR SOFTWARE. YOU ACKNOWLEDGE THAT FIITG DOES NOT CONTROL OR ENDORSE IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THIS SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, FIITG AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THIS SITE. YOU ACKNOWLEDGE THAT FIITG MAKES NO WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THIS SITE WILL BE MAINTAINED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FIITG OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. THE DISCLAIMERS IN THIS PROVISION DO NOT APPLY TO CLAIMS FOR PERSONAL INJURY.
32. LIMITATION OF LIABILITY:
32.1 TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL FIITG OR ITS PARENTS, SUBSIDIARIES,
OFFICERS, EMPLOYEES, AFFILIATES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, TRANSMITTING, OR DISTRIBUTING THE SITE OR RELATED
SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL NON-PERSONAL INJURY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FIITG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR
CONDUCT OF ANY THIRD PARTY ON THE SITE OR (E) ANY OTHER MATTER RELATING TO THE SITE.
32.2 YOU SPECIFICALLY ACKNOWLEDGE THAT FIITG SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
33. Dispute Resolution and Release
33.1. These terms and conditions and your relationship with Fiitg shall be governed by and construed in accordance with the laws of the state of California, without resort to its conflict of law provisions. Any dispute relating in any way to your visit to the Site or to the Products you purchase through the Site shall be submitted to confidential binding arbitration in the City of San Mateo, Northern California for the maximum judgment enforceable, except that to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California and we each waive the right to a jury trial. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of California. Arbitration under this Agreement shall be conducted pursuant to the existing Commercial Arbitration Rules at the American Arbitration Association. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim is initiated in court rather than in arbitration we each waive any right to a jury trial.
33.2. You and Fiitg agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Mateo, Northern California.
33.3. If you have a dispute with one or more Users or Designers you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which states: “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.”
If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired.
35.1. The relationship of Fiitg and you, as established by this Agreement, is that of independent contractors, and nothing contained herein shall be construed to constitute either party as the agent of the other party, or as partners, joint venturers, co-owners, employers/employees, franchisors/franchisees, or otherwise as participants in a joint or common undertaking. Fiitg exercises no control over you other than the ability to limit or terminate your ability to use the Site.
35.2. Fiitg may assign its rights and responsibilities hereunder without notice to you.
35.3. These terms and conditions will inure to the benefit of Fiitg’s successors, assigns and licensees.
35.4. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision
35.5. The failure of a party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of the right or provision.
35.6. Fiitg’s failure to act with respect to a breach by you or others does not waive Fiitg’s right to act with respect to subsequent or similar breaches.
35.7. The Policies constitute the entire agreement between you and Fiitg, and supersedes all other communications, written or oral, with regard to the subject matter herein, the Site and services provided by Fiitg.
35.8. These terms and conditions may not be modified by you.
35.9. The following Sections shall survive any termination of this Agreement: 7 (Social Media), 15 (Electronic Communications Delivery Policy), 21 (Pricing, Shipping and Terms of Sale), 25 (Trademark and Copyright), 26 (Proprietary Rights), 27 (Intellectual Property Policy), 28 (Reviews, Comments and Submissions), 29 (Warranty), 30 (Indemnity), 31 (Disclaimer of Warranties), 32 (Limitation of Liability), 33 (Dispute Resolution and Release), and 35 (General).
35.10. Fiitg will attempt to notify you when major changes are made to this User Agreement but you should periodically review the most up-to-date version at user agreement https://www.fiitg.com/pages/user-agreement. Fiitg may, in its sole discretion, modify or revise these Terms and the associated Policies at any time, and you agree to be bound by such modifications or revisions.
35.11. Nothing in this User Agreement shall be deemed to confer any third-party rights or benefits.
35.12. Fiitg does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside Fiitg’s control.
35.13. You agree that Fiitg is a platform and as such is not responsible or liable for any Content.
35.14. You use the Site at your own risk.
35.15. In the event of any conflict between the various language versions of these Policies, the English language version on www.Fiitg.com shall control.