Last Updated: August 2023
These Givee Select Platform Terms and Conditions (the “Terms”) set forth the terms and conditions upon which Spoke Custom Products, LLC (“Company”, “we”, “us”, and “our” as the context requires) provides you, our valued distributor (“Distributor”, “you”, and “your”, as the context requires) access to our platform entitled Givee Select™ (the “Platform”), which facilitates the creation of event merchandise distribution websites (each, a “Site”) for Distributor’s customers (each, a “Customer”). By using the Site, attendees at Customer’s events that Distributor has authorized by providing us with a valid e-mail address for such attendee (“Attendees”) will be able to select customizable print-on-demand products from our catalogue (the “Products”).
By registering for an account on the Platform, you accept these Terms. If you accept or agree to these Terms on behalf of a legal entity, you represent and warrant that you have the authority to bind that legal entity to these Terms and, in such event, “Distributor” “you” and “your” will refer and apply to that legal entity.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE PLATFORM.
Registration. You must register for an account to access and use the Platform. By registering for an account and/or accessing and using the Platform, you represent and warrant that: (a) you are at least 18 years old, (b) you have read, understand, and agree to be bound by these Terms, as may be amended from time to time, and (c) any information you provide to us, both when you register for an account and in the future, is and will be true, accurate, current, and complete.
Account Information. You are responsible for maintaining the confidentiality of your account login credentials and for all access to and use of the Platform through such login credentials (whether or not authorized by you). You may not share your account with anyone, and you agree to immediately notify us of any unauthorized use or disclosure of your login credentials by sending an email to [email protected]. You agree to keep your password secure. We will not be liable in any way if we are unable to retrieve or reset a lost password. You agree that we may deny access, use, and/or registration privileges to any account of the Platform at any time and in our sole discretion, including if we have reason to believe an account was created with false information or otherwise used for fraudulent purposes. If you make changes to your settings or user permissions within the Platform, it may take some time for our system to process the change and you acknowledge that those changes may not take effect immediately.
License Grant. Subject to your compliance with the terms and conditions of these Terms, we grant you a non-exclusive, non-transferable, revocable right and license to use the Platform to create Sites for your Customers so that Attendees may customize and order promotional Products.
Restrictions. You shall not: (a) modify, copy, display, republish or create derivative works based on the Platform; (b) reverse engineer the Platform; (c) access or use the Platform to build a competitive product or service, or copy any ideas, features, functions or graphics of the Platform; (d) use the Platform in any way prohibited by applicable law or that would cause either party to violate applicable law including, but not limited to uploading, sending or storing: (1) spam or other duplicative or unsolicited messages; (2) infringing, obscene, threatening, libelous, or other unlawful material; (3) blocked services; or (4) viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (e) use the Platform to run automated queries to external websites; (f) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; (g) attempt to gain unauthorized access to the Platform or their related systems or networks; (h) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Platform; (i) perform penetration or load testing on the Platform; or (g) conduct any public benchmarking or comparative study or analysis involving the Platform.
Submissions of Content. The Platform allows Distributors to create customizable Products for your Customers to offer to Attendees using our print-on-demand services. Such Products will be made available to Attendees through the Sites you create. To do so, you or your users may be asked to upload, as applicable, graphics, images, art, artwork, works, photographs, illustrations, listings, information, text, data, video, sound, music or any other materials (collectively “Content”). You agree that (i) you are solely responsible for securing from your Customers the right to use any such Content submitted to the Platform, including its legality, reliability, accuracy, and appropriateness, (ii) all such Content complies with these Terms, and (iii) you have all rights in such Content (including all rights from your Customers) as necessary to grant the license granted herein.
License to Use the Content. Unless otherwise agreed by the parties, any Content you submit to the Platform through your account remains your Customer’s property. By posting, uploading or otherwise submitting Content to the Platform, you grant us, and have secured from your Customers the right to grant us, a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicensable, royalty-free, fully-paid up license to use such Content solely to manufacture and provide the Products to Attendees and to make available certain features in the Platform for you to service your Customers.
Right to Remove Content. While we are not responsible for Content, we may, but have no obligation to, monitor, review or edit Content. In all cases, we reserve the right to remove any Content for any or no reason, including Content that we determine in our sole discretion violates these Terms, threatens the personal safety of our users or the public, or could create liability for us. We may take these actions without prior notification to you, and shall have no liability resulting from any such action.
Costs to Distributor. The costs charged by us to you for all orders of Products submitted on any Site by your Customer’s Attendees are set forth in the Platform. For each submission of an order for Products submitted by an Attendee, Distributor will be solely responsible to pay us, without deduction, the designated cost of such Products, the shipping costs designated in the Platform, and any Taxes imposed on such sale as described in more detail below in the Section entitled Taxes (collectively, the “Costs”). Orders are non-cancellable once they are submitted on a Site by an Attendee. Distributor is solely responsible for ensuring that it only provide us with the emails for those individuals that are permitted to submit orders for Products on the Platform.
Payment of Costs. Unless otherwise agreed to by Company, you must keep a valid payment method on file with us to pay for all Costs. We will charge applicable Costs to any valid payment method that you authorize, and we will continue to periodically charge the authorized payment method for applicable Costs until any and all outstanding amounts have been paid in full. Unless otherwise indicated, all Costs are in the currency displayed in the Platform.
Shipping. We will ship the Products ordered on the Platform to the address that the Attendee designates during the submission process on the Platform. We are not responsible for any incorrect or incomplete shipping addresses entered into the Platform. All orders are shipped using our designated carriers, which way may choose in our sole discretion. Title and risk of loss for all Products will transfer to you when we ship the Products using the designated carrier.
Collections from Customers. You are solely responsible to collect any amounts that you see fit from your Customers based on the creation of the Sites and fulfillment of orders of Products to Attendees. The Company is not responsible for any your inability to collect such amounts from your Customers. The difference between the amount you collect from your Customers, if any, and the Costs you pay to us for such Products is your full compensation pursuant to these Terms.
Attendee and Event Parameters. You will be able to establish certain parameters for submission of orders through each Site, such as the start and end dates on which orders may be submitted by Attendees, the maximum value or quantity of Products that each Attendee may order, and the types of Products available to Attendees. You are solely responsible for ensuring that such parameters are in line with your Customer’s expectations. Company will have no liability or obligation to remediate any inaccuracies in such parameters.
Ownership of the Platform. We retain all intellectual property rights in and to the Platform (including all copyrights, patents, service marks, trademarks and any other proprietary rights), including, but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. We also retain all proprietary marks, legends, patent and copyright notices that appear on the Platform (other than your Customer’s Content).
Feedback. You grant to us a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicensable, royalty-free, fully-paid up license to copy, prepare derivative works from, improve, distribute, publish, remove, retain, add, process, analyze, index, tag, use and commercialize any request, comments, suggestion, recommendation, correction, or other feedback provided by you related to the Platform.
The Platform and Sites may directly or indirectly provide links to websites or applications and access to content, products and services from third parties, including other users, advertisers, affiliates and sponsors (“Third Party Applications”). Distributor acknowledges and agrees that (a) access and use of Third Party Applications may be subject to additional terms and conditions as made available by such third party providers, and (b) Company is not responsible for the availability or content of any such Third Party Applications, including any related opinions, advice, statements or advertisements. At any time, Company may stop providing the Third Party Applications without entitling you to a refund or credit.
Our Privacy Policy is incorporated into and made part of these Terms by reference, and you hereby agree to the terms of the Privacy Policy.
The Platform may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the Platform without prior written permission from Company once granted by the appropriate jurisdiction. Your rights and obligations hereunder shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. You each shall certify that it shall not, directly or indirectly, export, re-export or transship the Products (as defined below) in such manner as to violate such laws and regulations in effect from time to time. You shall indemnify and hold harmless Company from and against any and all losses, claims and expenses incurred by Company as a result of the breach of your obligations under this Section.
You are ultimately responsible for all applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”) that arise from or as a result of shipments of the Products from the Sites. To the extent that Company charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts will be billed to your authorized payment method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to Company of your exemption. If you are not charged Taxes by Company, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.
Term. Your access to the Platform shall begin on the date you register for the Platform and shall continue until terminated in accordance with this Section.
Termination. You may terminate your access to the Platform at any time by deleting or deactivating your account. We reserve the right to monitor your use of the Platform and to suspend or terminate your use of the Platform as well as your use of any Sites without notice at any time for any reason in our sole discretion.
Effect of Termination. Upon the termination of these Terms, all license rights granted to you hereunder shall automatically and immediately cease. Prior to any termination of these Terms taking effect, you authorize the completion of any transactions in progress in relation to your Products, on the terms of these Terms. Termination of these Terms will take effect once these transactions have been completed.
Survival. All sections of these Terms that by their nature should survive termination shall survive, including without limitation, orders of Products, Ownership and Feedback, Indemnification, Disclaimer, Limitation of Liability, and General. Your obligation to pay us Costs expressly survives the expiration or termination of this Agreement.
You agree to indemnify, defend and hold harmless us and each of our officers, directors, employees, contractors, licensors, agents, representatives, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to (a) your violation of these Terms, (b) your Customer’s Content, and (c) your use of the Platform and your Customer’s use of the Sites.
When you upload your Customer’s Content to the Platform you represent and warrant all of the following: (a) you or your Customers own all applicable rights in the Content including, but not limited to, intellectual property rights and publicity rights or, if you or your Customers are not the owner, that you or your Customers have secured permission from the owner to display, reproduce, distribute, make, and sell and otherwise use the Content in connection with the Platform; (b) the Content will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trademark, patent or rights of privacy or publicity; (c) your use of the Platform will comply with all applicable laws; (d) all Content is accurately titled, tagged and described; (e) the Content does not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable; (f) the Content does not include malicious code including, but not limited to, viruses, trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information; and (g) the Content is not misleading or deceptive and does not offer or disseminate fraudulent goods, services, schemes, or promotions, and the Content does not promote Products for uses and to consumers for which the Products are not intended.
THE PLATFORM AND THE PRODUCTS DISTRIBUTED USING THE PLATFORM ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE RELATED TO THE PLATFORM AND THE PRODUCTS. WE DO NOT WARRANT THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR FREE FROM ERRORS, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM (OR ANY CONTENT OR MATERIALS AVAILABLE IN CONNECTION THEREWITH) WILL MEET YOUR SPECIFIC REQUIREMENTS.
The parties acknowledge that the disclaimers of warranties set forth in this Section are an essential element of these Terms, and the parties would not have entered into these Terms without such disclaimers of warranties. Notwithstanding the foregoing, certain jurisdictions limit disclaimers of warranties. In such jurisdictions, you may have additional legal rights, and the provisions of these Terms will remain in effect to the fullest extent permitted by law.
IN NO EVENT SHALL WE OR OUR RESPECTIVE LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF REPLACEMENT OR SUBSTITUTE GOODS OR SERVICES, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE BASIS OR THEORY OF ANY CLAIM AND REGARDLESS OF WHETHER WE ARE ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF US OR OUR LICENSORS UNDER OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE BASIS OR THEORY OF ANY CLAIM, EXCEED $1000.
The parties acknowledge that the limitation of liability and release set forth in this Section are essential elements of these Terms between the parties, and the parties would not have entered into these Terms without such limitation of liability and release. Notwithstanding the foregoing, certain jurisdictions limit limitations of liability and releases. In such jurisdictions, you may have additional legal rights, and the provisions of these Terms will remain in effect to the fullest extent permitted by law.
Force Majeure. We will not be liable for failure or delay to perform our obligations under these Terms to the extent caused by circumstances beyond our reasonable control.
Assignment. You may not assign, delegate or otherwise transfer your account or your obligations under these Terms without the prior written consent of us. We have the right, in our sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third parties to fulfill our duties and obligations under these Terms and in connection with the Platform.
Relationship of Parties. These Terms do not create any agency, partnership or joint venture between the parties.
Governing Law. These Terms are governed by the laws of the State of Delaware, without reference to its conflict of laws principles.
Notices. Our notice to you via email, regular mail or notices, posts, or links on the Platform shall constitute acceptable notice to you under these Terms. You must provide any notice to us in writing and send via email to [email protected].
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.
Severability. If any term (or part of a term) of these Terms is invalid, illegal or unenforceable, the rest of the Terms shall remain in effect.
Amendment. We may amend these Terms at any time. When we do, we will let you know by appropriate means such as by posting the revised statement on this page with a new “Last Updated” date. Changes to these Terms will become effective when posted, unless indicated otherwise. If you object to any changes, you must close your account in accordance with these Terms.
Entire Agreement. These Terms constitute the entire agreement between the parties concerning the Platform and supersede all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. Any contrary or additional provisions in your purchase orders, forms or any other document, correspondence or e-mail, shall not apply to any order and are hereby rejected. Under no circumstances shall any separate agreement, form, jot form, correspondence, or any other document apply to the Products purchased under these Terms, even if such agreement, form, jot form, correspondence or other document is signed by an employee of Company unless signed by the CFO of the Company. In the event that Company and you have a separate agreement for the purchase of Products outside of the Platform, nothing in these Terms shall be construed to modify or amend such separate agreement and nothing in such separate agreement shall be construed to modify or amend these Terms.
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