PURPOSE OF THE GENERAL TERMS AND CONDITIONS OF USE
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The Website DesignYoursHere.com aka DYH is an e-commerce website that provides a platform for the sale of, but not limited to, made to order art, clothing and accessories to internet users browsing the Website.
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Access to the Website and use of the Website content are governed by these GTCU.
The purpose of these GTCU is to establish the terms and conditions for use of the Website and the user’s rights and obligations.
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Please read these GTCU carefully before using this Website. By accessing the Website, you agree to comply with these GTCU, which apply to all of the services available on the Website, each time you visit the Website.
Accordingly, you must agree to these GTCU in their entirety, without reservation, before using the Website. If you do not, you shall not use the Website.
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DYH retains the right to update or modify the information and content of the Website, including these GTCU, without notice, at any time. Any change will take effect from the time of publication. Such changes are deemed to be agreed to, without reservation, by any user who accesses the Website after the changes are published online. We advise you to reread the GTCU regularly in order to stay informed of any such changes. Nonetheless, you will be notified of any substantial change.
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2. ACCESS TO THE WEBSITE
By using this Website, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Website with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Website and agree to these GTCU. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these GTCU and to fully indemnify and hold harmless DYH if the Minor breaches any of these GTCU. If you are not at least 13 years old, you may not use the Website at any time or in any manner or submit any information to DYH or the Website.
DYH provides content through the Website that is copyrighted and/or trademarked work of DYH or DYH’s third-party licensors and suppliers or other users of the Website (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content.
Subject to the terms and conditions of these GTCU, and your compliance with these GTCU, DYH hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Website solely for your personal use. Except for the foregoing license, you have no other rights in the Website or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Website or Materials in any manner.
If you breach any of the terms of these GTCU, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials.
Charges for access to and use of the telecommunication network shall remain the responsibility of the user, under the terms and conditions determined by access providers and telecommunications operators.
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3. PURCHASES
If applicable, you agree to pay all fees or charges to your account based on DYH’s fees, charges, and billing terms in effect as shown on the PAYMENT PAGE and contained in the General Terms and Conditions of Sale (link). If you do not pay on time or if DYH cannot charge your credit card, PayPal or other payment method for any reason, DYH reserves the right to either suspend or terminate your access to the Website and account and terminate these GTCU. You are expressly agreeing that DYH is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Website and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Website, and thereafter at regular intervals for the remainder of the term of these GTCU. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that DYH may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
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4. ELECTRONIC COMMUNICATIONS
By using the Website and/or the services provided on or through the Website, you consent to receiving electronic communications from DYH. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Website and/or services provided on or through the Website. These electronic communications are part of your relationship with DYH. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
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5. PRIVACY POLICY
Please review DYH's Privacy Policy, which is available at here (the “Privacy Policy”) which explains how we use information that you submit to DYH.
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6. INTELLECTUAL PROPERTY
This entire Website is subject to international legislation on copyright, trademarks and intellectual property more generally, in respect of both its form (choice, site map, arrangement of subjects, methods of accessing data, databases or any organization of data, etc.) and each of the components of its content (trademarks, texts, images, videos, etc.). That content, which appears on the pages of this Website, is the exclusive property of DYH and its contributors, who grant no license or any right other than the right to visit the Website. Reproduction of any content published on the Website is authorized only for informational purposes to the extent that it is intended solely for personal and private use. Any reproduction, extraction or use of content for other purposes is expressly prohibited. In exceptional cases, certain content (texts, images) remains the property of its respective authors but is still subject to the same rules and restrictions as the content referred to above.
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The use of all or part of the Website, in particular arising from the download, reproduction, transmission or performance, for purposes other than for personal and private use for a non-commercial purpose is strictly prohibited.
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Hypertext links to any of the pages or elements of the Website may be created only with DYH’s prior written authorization, which may be revoked at any time. Websites that have a hypertext link to the Website or to any of its elements are not under the control of DYH and DYH declines any responsibility (in particular editorial responsibility) arising from the access to, and the content of, such websites.
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The Website may feature links to other websites or other Internet sources. Since DYH cannot control those external websites or sources, DYH shall not be held liable for having made those websites and external sources available and declines any liability arising from the content, advertisements, products, services or any other information or data that is available on or via those external websites or sources. Additionally, DYH shall not be held liable for any actual or alleged damage or losses caused by or arising from the use of or reliance on the content, products or services available on those external websites or sources.
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Intellectual Property Infringement DYH respects the intellectual property rights of others, and asks you to do the same.
DYH may, in appropriate circumstances and at it’s sole discretion, terminate service and/or access to this Website for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Website, please provide DYH’s designated agent the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit DYH to locate the material.
Information reasonably sufficient to permit DYH to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DYH’s agent for notice of claims of copyright or trademark infringement on this Site can be reached at designyourshere@gmail.com. Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
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7. OBLIGATIONS OF THE USER
You agree not to use or permit the misuse of the Website or the use of the Website for unlawful, fraudulent or malicious purposes, in particular, but without limiting the generality of the foregoing: (a) by hacking the Website or introducing malware, including viruses, or harmful data into the Website or any operating system; (b) by using a web crawler or any other system, device or program (whether automated or otherwise) to extract data or information from DYH’s Website or servers; (c) by sending or storing documents containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) by interfering with or damaging the integrity or performance of the Website and the data it contains; (e) by attempting to obtain unauthorized access to the Website or to its associated systems or networks; or (f) by attempting to obtain unauthorized access to the accounts or personal information of other users.
This list of prohibitions provides examples and is not complete or exclusive. DYH reserves the right to terminate access to your account for any action that DYH determines is inappropriate or disruptive to this Website or to any other user of this Website. DYH may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at DYH’s discretion, DYH will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Website or on the Internet.
Unauthorized use of any Materials or Third-Party Content contained on this Website may violate certain laws and regulations. You agree to indemnify and hold DYH and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) DYH or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Website (including without limitation, your participation in any posting areas) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
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8. LIABILITY OF DYH
Disclaimer of Warranties
Your use of the Website is at your own risk. The Materials have not been verified or authenticated in whole or in part by DYH, and they may include inaccuracies or typographical or other errors. DYH does not warrant the accuracy of timeliness of the Materials contained on this Website. DYH has no liability for any errors or omissions in the Materials, whether provided by DYH, our licensors or suppliers or other users.
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DYH, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS WEBSITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS WEBSITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS WEBSITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. DYH DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER. ADDITIONALLY, DYH DOES NOT GUARANTEE THE CONTINUOUS OPERATION OF THE WEBSITE OR WARRANT THAT IT WILL BE FREE OF BUGS OR VIRUSES. IN THIS REGARD, THE USER REPRESENTS THAT HE OR SHE AGREES TO THE CHARACTERISTICS AND LIMITATIONS INHERENT TO THE INTERNET.
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Limitation of Liability
DYH SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DYH BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF DYH KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
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9. AVAILABILITY; MAINTENANCE
DYH will make its best efforts to maintain the Website at a reasonable level of functioning and availability. DYH reserves the right to limit access to the Website and use of the Website by the user at any time, without notice, in order to carry out maintenance or make changes. DYH shall not be liable in the event that access is interrupted as a result of such maintenance or update.
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10. FEEDBACK
If you send or transmit any communications, comments, questions, suggestions, or related materials to DYH, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Website, any services offered through the Website or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and DYH is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that DYH is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
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11. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at designyourshere@gmail.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and DYH. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and DYH shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “DYH” means DesignYoursHere and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and DYH regarding any aspect of your relationship with DYH, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced and shall include any claims against other parties relating to services or products provided or billed to you (such as DYH’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
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DYH AND YOU AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
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Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give DYH an opportunity to resolve the Dispute. You must commence this process by mailing written notification to DYH, 8908 ROUND ROCK RD, SW ALBUQUERQUE, NM 87121. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If DYH does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or DYH may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to DYH, at 8908 ROUND ROCK RD, NW ALBUQUERQUE, NM 87121. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with DYH through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with DYH. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or DYH may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Website and these GTCU concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or DYH may initiate arbitration in either New York, NY or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, DYH may transfer the arbitration to New York, NY in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – DYH will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with DYH as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and DYH specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver
You understand and agree that you and DYH are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and DYH might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your service with DYH or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if DYH makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require DYH to adhere to the language in this Provision if a dispute between us arises.
12. APPLICABLE LAW; LANGUAGE
These GTCU are governed by and subject to US law. They are written in English. In the event that they are translated into another language or languages, the English text alone will be authoritative in the event of a dispute.
13. GENERAL
DYH prefers to advise you if DYH feels you are not complying with these GTCU and to recommend any necessary corrective action. However, certain violations of these GTCU, as determined by DYH, may result in immediate termination of your access to this Website without prior notice to you. The Federal Arbitration Act, New York state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these GTCU. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these GTCU or this Website will be heard in the courts located in Albuquerque, NM. If any of the terms herein is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. DYH’s failure to enforce any of the terms herein is not a waiver of such term. These GTCU are the entire agreement between you and DYH regarding its object and supersede all prior or contemporaneous negotiations, discussions or agreements between you and DYH. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these GTCU.
14. CALIFORNIA CONSUMER NOTICE
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Website is provided by DYH, 8908 ROUND ROCK RD, NW ALBUQUERQUE, NM 87121, Telephone Number 505 506 8092. If you have a question or complaint regarding the Website or Service, please contact DYH Customer Service at designyourshere@gmail.com. You may also contact DYH by writing at 8908 ROUND ROCK RD, NW ALBUQUERQUE, NM 87121. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.