Terms & Conditions
I. This Agreement
- Acceptance: This Agreement establishes the terms, conditions, rights, and responsibilities applicable to your use of the Website. To use the Website, you must accept this Agreement by clicking the [I ACCEPT] button during account setup. If you do not click the "I ACCEPT" button, you are not authorized to use the Website, C&B and/or the Services.
- Amendments/Modifications: We may change this Agreement at any time, for any reason. We will notify you of changes by an e-mail from us and we will post the revised Agreement on the Website for thirty (30) days before the new version takes effect. If you don’t agree with the new version, you must terminate your Account before the new version’s effective date.
- Age and Capacity Requirements: No one under the age of 13 may use the Website, and use by individuals between the ages of 13 and 18 must be supervised by a parent or guardian who is bound by this Agreement. By using the Website, you represent and warrant that you meet the age requirements and are able to enter into legally-binding contracts.
- Breach: Your breach of this Agreement results in the automatic termination of the rights and licenses granted to you under this Agreement.
II. Your Account
- Opening an Account: An account ("Account") is required to use the Website. You must provide complete and accurate contact, payment, and tax identification information, and select a password, to open an Account. Account registration is located here.
- Maintenance: You must keep all Account information current, and your failure to do so means you will not receive Payments for any Products you sell through the Services.
- You are responsible for keeping your password confidential, and for any and all use of your password and Account (including unauthorized use). You must immediately notify us if you think your password has been stolen, or if there has been any actual or attempted access involving your Account, to which you did not consent.
- Your Rights: You may close your Account by completing the online account termination form
- Your Obligations: On termination of your Account, you must immediately remove all links to the Website and stop representing yourself as a user of our Services.
Our Rights: We may, with or without notice:
suspend, limit your access to, or terminate your Account(s) for any reason, or no reason, including, but not limited to:
- lack of Account activity for twelve (12) consecutive months; or
- repeated infringement of the intellectual property rights of Motivo d'Agrado or third parties.
- remove any or all of your Content and/or Products from the Website, our servers and/or directories; and
- ban you from use of the Website by any available means, including blocking your IP address.
- suspend, limit your access to, or terminate your Account(s) for any reason, or no reason, including, but not limited to:
- Termination Fees: If you use our Services and earn any Payments, and your Account is terminated (by you or by us), we will charge you a Twenty-Five Dollar ($25.00 USD) processing fee (“Processing Fee”) and will deduct that amount from any final Payment sent to you. If your Account contains less than the Processing Fee, we will keep the entire Account balance and you will not receive any Payment.
- Waiver: Any Payment which is outstanding and unclaimed for twelve (12) months or more after it is made to you becomes our sole property to retain or otherwise dispose of as we deem fit, without liability to you or anyone else.
III. Rights and Licenses
- Motivo d'Agrado Intellectual Property: We own all intellectual property and other rights, title and interest in and to the Website, C&B service, and the Services including, but not limited to, the Motivo d'Agrado trademark, the Website copyrights, and technologies used to provide C&B and the Services. You do not have, and will not acquire, any right, title or interest in or to any of our intellectual property except as specifically detailed in this Agreement. You have a limited, non-exclusive, revocable license to access and use the Website in accordance with this Agreement.
Your Intellectual Property: You own all intellectual property and other rights, title and interest in
and to any Content that you upload to the Website. You are solely responsible for your Content, and we do not have, and will not acquire,
any right, title or interest in or to your Content except as specifically detailed in this Agreement. By uploading any Content to the
Website, you grant us the following rights and licenses:
- For C&B: a royalty-free, worldwide, transferable, exclusive, sub-licensable right and license to use your Content in all media, existing now or created in the future, as we deem necessary to enable you to use the C&B Services. Our right to sublicense is limited to the use of third-parties to provide the Services, process your order, and/or produce and ship your Products.
For the Services:
a royalty-bearing, worldwide, transferable, non-exclusive, sub-licensable right and license to use your Content in all media and
sales channels, existing now or created in the future, as we deem necessary to provide the Services including, but not limited to:
- allowing you to design, market, make available for sale, sell, produce and distribute Products bearing your Content;
- promoting, marketing and advertising your Content and/or Products by displaying them on the Website, marketing them through our affiliates and distribution partners, and featuring them in magazines, television shows, and movies;
- automatically adding your Content to additional blank products offered through the Shops and Marketplace portions of the Services via the auto-populate feature ("CP Admin"); and
- modifying your Content for purposes of improving the printing quality, display-ability, or enhancing its appearance on your Products by cleaning up JPG artifacting, resizing to fit dimensions of the blank products that you have chosen to apply your Content to, adjusting colors for different printers and Products, and adjusting placement on Products.
- For the CP Admin Auto-Populate Feature: a royalty-free, worldwide, transferable, exclusive, sub-licensable right and license to use your Content in all media, existing now or created in the future, as we deem necessary to enable you to use the C&B Services. Our right to sublicense is limited to the use of third-parties to provide the Services, process your order, and/or produce and ship your Products.
- Submissions: You grant us the perpetual, non-exclusive, sub-licensable right to use any questions, comments, suggestions, ideas, message board postings, web forms, contest entries, communications or any and all other materials or information that you submit to us ("Submissions") for marketing and other promotional purposes, and waive any claim arising from or relating to use of your Submissions.
Payment: You will be paid either a Royalty or a Commission (collectively "Payment" or "Payments") for
all Products sold using the Services.
- For Products you sell through the Marketplace and/or Shops, you will receive Payment in the form of a "Royalty" or "Royalties".
- For Products you sell through a Fan Portal or under any Affiliate Agreement you will receive Payment in the form of a "Commission," calculated in accordance with Exhibit B.
- Taxes: You are responsible for determining what, if any, taxes apply to Payments you receive, for maintaining any required documentation, and for collecting, reporting and remitting taxes to the appropriate authorities.
- Timing of Payments: As you sell Products, Royalties and/or Commissions will accumulate in your Account. You will be paid by PayPal (unless another method of payment is selected in the Payee Information section of your Account) once your Account balance reaches your designated payment threshold. Payments will be automatically pushed to you within sixty (60) days after the last day of the month during which your Account balance reaches the threshold.
Content Usage Policy: You are responsible for uploading your Content according to the Website upload instructions. All Content must comply
with the Content Usage Policy in Exhibit C.
- We reserve the right, but do not assume the obligation, to determine whether Content complies with the Website upload instructions, the Content Usage Policy, and this Agreement. We may remove Content that appears to be non-compliant, and withhold Payment for any Products sold bearing Content that appears to be non-compliant.
- Costs of Creation: You are responsible for the cost of creating your Content.
VI. Use of the Website
- Your use of the Website must be in accordance with this Agreement, and must comply with all applicable laws, rules and regulations.
You may not cause any harm to, or otherwise interfere with, the Website and/or Services by (but not limited to):
- introducing viruses or using programs or technology intended to disrupt or damage software or hardware;
- modifying, creating derivative works from, reverse engineering, decompiling or disassembling any technology;
- interfering with or disrupting the access of any user, host or network via any means including, but not limited to, overloading, flooding, spamming, scripting Content creation, or linking to coupon sites;
- creating an undue burden on the Website;
- collecting email addresses or other information using the Website;
- impersonating another person or entity;
- using meta tags, search terms, key terms, etc. containing the word “Motivo d'Agrado” or our other trademarks;
- helping or encouraging any third party to engage in activity prohibited by this Agreement;
- purchasing, registering, or bidding on any keywords, search terms or other identifiers including the term (or variations of) "monalisa" (i.e. "monalisa", "mona lisa", "mona-lisa-cafe.com", etc.) for use in any search engine, portal, sponsored advertising service or other search or referral service.
- You may not use "spam," "blast-faxes" or recorded telephone messages to promote, market or sell your Content and/or Products. You may not spam or attempt to deliberately subvert the results of our directory or search engine with false, misleading, or unnecessarily repetitive information.
VII. Representations and Warranties
- Mutual Representations and Warranties: You represent and warrant to us, and we represent and warrant to you, that: (1) each of us has the full power and authority to enter into and perform this Agreement; (2) the execution of this Agreement and performance of our obligations will not breach, and does not conflict with, any other agreement or arrangement by which we are respectively bound; and (3) each of us understands and agrees that this Agreement is a legal, valid, and binding obligation enforceable by law according to its terms and conditions.
Your Representations and Warranties: You represent and warrant that:
- your use of the Website does not infringe the rights of any third-party including, but not limited to, copyrights, trademarks, patents, trade secrets, and rights of privacy and publicity;
- your use of the Website does not violate any applicable laws, regulations and rules including, without limitation, exploitation of the images or likeness of minors;
- there are no pending or threatened lawsuits, claims, or demands involving, arising from or relating to your Content; and
- your use of the Website is and will at all times remain in full compliance with this Agreement.
VIII. Disclaimers and Exclusions
- Modification of the Website, C&B and/or the Services: We may modify, change, suspend or discontinue any aspect of the Website, C&B and/or the Services at any time, with or without notice, without liability to you or anyone else.
- We are not obligated to monitor the transactions or communications made through the Website. However, we reserve the right to cancel any transaction, or remove or limit access to any Content, Products, or all or part of the Website at any time with or without notice and without any liability to you or any third party.
Disclaimer of warranties:The website, c&b and the services are provided "as is" and "as
available". We neither represent nor warrant that the website, c&b and/or the services or its or their use:
- will be uninterrupted;
- will be free of inaccuracies or errors;
- will meet your requirements; or
will operate in the configuration or with the hardware or software you use
- we make no representations or warranties other than as expressly made in this agreement, and hereby disclaim any and all implied warranties including, but not limited to, fitness for a particular purpose, merchantability and non-infringement.
IX. Limiation of Liability
- We May Use Third-Party Services: We may use third-parties to provide certain services accessible through the Website, and will not be liable to you for their acts or omissions
Limitation of liability: We will not be liable to you or anyone else for any consequential, incidental, indirect, punitive or special damages (including damages relating to lost profits, lost data or loss of goodwill) arising out of, relating to or connected with your use of the website, under any theory of liability, and even if advised of the possibility of such damages. Our aggregate liability in connection with this agreement will in all events be limited to the greater of fifty dollars ($50.00 usd) or the invoiced amount paid to us for the products giving rise to such liability. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above may not apply to you. In such jurisdictions, our liability to you is limited to the fullest extent permitted by law.
- You specifically acknowledge and agree that we will not be liable for the illegal, offensive or defamatory conduct of others, including any such conduct by you, and that you bear all risk and liability associated with your content.
- Release: You hereby release monalisa and its owners, officers, directors, managers, representatives, affiliates, successors, assigns, agents, subsidiaries, shareholders, employees and business partners from any and all claims, demands and damages of every kind and nature, known and unknown, arising out of, relating to, or in any way connected with your use of the website, c&b and/or the services. If you are a resident of california, 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."
You hereby agree to indemnify and hold Motivo d'Agrado and its owners, shareholders, directors, officers, managers, employees, representatives, agents, subsidiaries, affiliates, successors, business partners and assigns (the "Releasees") harmless from and against any and all damages, losses, costs or expenses (including, without limitation, attorneys' fees and costs at trial and on appeal) incurred in connection with any third-party suit, claim, demand or action brought against any of the Releasees arising from or relating to your use of the Website, C&B, the Services, your Content, or your breach of this Agreement (individually and collectively a “Claim”). Motivo d'Agrado has the right to control the defense, settlement, and resolution of any Claim, at your sole cost and expense. In no event may you settle or otherwise resolve any Claim without our express written permission. We may withhold any and all Payments due to you in enforcing your indemnification obligations.
XI. Arbitration and Dispute Resolution
Notices: All notices under this Agreement must be in writing and delivered as follows:
If to Motivo d'Agrado:
Auto Silo Parque Verde Panorâmico,
Sítio da Quinta Calaça,
If to you:
Using your most recent Account contact information;
Notices must be made, and will be considered received, as follows: (i) by U.S. mail, seven (7) business days after deposit in a mailbox, (ii) by overnight courier, on the date receipt is confirmed by the courier service, or (iii) by electronic mail, upon receipt of a "read receipt".
You or we may update the address for Notices set forth in this section by electronic e-mail, upon receipt of a "read receipt".
- Applicable law, Jurisdiction, and Venue: This User Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, in accordance with the Dispute Resolution by Binding Arbitration section of this Agreement set forth below in Section D. Any and all claims of infringement involving the Website, C&B, and/or the Services shall be governed by and construed in accordance with applicable federal law, and shall be brought before a court of competent jurisdiction in the State of California. The parties acknowledge that this User Agreement is evidence of a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted under this User Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., §§ 1-16).
- Assignment and Transferability: You may not assign or otherwise transfer this Agreement.
Dispute Resolution by Binding Arbitration:
Please read this "dispute resolution by binding arbitration" provision carefully, because it requires you to arbitrate disputes with monalisa and it limits the manner in which you can seek relief.
This provision precludes you from bringing any class, collective, or representative action against monalisa. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action against monalisa by someone else. In addition, arbitration precludes you from suing in court or from having a jury trial. Whether to agree to arbitration is an important decision. It is your decision to make and you should not rely solely on the information provided in this agreement, as it is not intended to contain a complete explanation of the consequences of arbitration. You should take reasonable steps to conduct further research and to consult with an attorney regarding the consequences of your decision. You may opt-out of this arbitration provision by following the instructions below.
Scope of Arbitration. You and Motivo d'Agrado agree that any dispute, claim or controversy arising out of or relating to your access to or use of the Website, C&B, or Services or to this Agreement or any other aspect of the parties’ relationship (a "Dispute"), shall be determined by arbitration, except that you and Motivo d'Agrado are NOT required to arbitrate any Dispute in which either party seeks equitable and/or legal or other relief for alleged violation of the Copyright Act, Lanham Act, or Patent Act or for state law claims of copyright, trademark, trade secret or unfair competition laws.
Small Claims Court. Notwithstanding this agreement to arbitrate, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
Applicable Arbitration Rules and Procedure. The arbitration shall be governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”), available at www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Arbitration Provision, except that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the JAMS Rules and the rules set forth in this Arbitration Provision, the rules set forth in this Arbitration Provision shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in Jefferson County, Kentucky.
Initiation of Arbitration Proceeding: If either You or Motivo d'Agrado decide to arbitrate a Dispute, we agree to the following
- Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”).
Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS at:
Auto Silo Parque Verde Panorâmico,
Sítio da Quinta Calaça,
- Send one copy of the Demand for Arbitration to the other party at the address set forth above in Section A on Notices or in accordance with that Section.
- Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
Location of Arbitration and Applicable Rules. You and Motivo d'Agrado agree that such arbitration shall occur in Jefferson County, Kentucky. You may request to appear in such proceedings telephonically. You and Motivo d'Agrado agree that such arbitration shall be conducted by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Service ("JAMS"), as modified by this Agreement.
Authority of Arbitrator. With the exception of class procedures and remedies as discussed below under "Waiver of Class Relief," the arbitrator shall have the authority to grant any remedy that would otherwise be available in court.
Allocation of Arbitration Fees. If you assert a Dispute as a consumer, you will only be required to pay arbitration fees of $250 of the fees charged by JAMS in connection with any arbitration under this section, and Motivo d'Agrado will bear all other costs charged by JAMS or the arbitrator, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. You will still be responsible for paying your own attorneys’ fees.
Waiver of class actions and class arbitrations. You and monalisa agree that each party may bring disputes against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Accordingly, under the arbitration procedures outlined in this arbitration provision, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all parties to an arbitration proceeding.
Procedure to Opt-Out of Arbitration Provision. You may opt-out of this arbitration provision only by written Notice via U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.) to Motivo d'Agrado Lda., Attn: Legal Department, 11909 Shelbyville Road, Louisville, KY 40243. You must send such Notice within thirty (30) days of your acceptance of this Agreement. You must sign and date the Notice, and include in it your name, address, and a clear statement that you do not wish to resolve disputes with Motivo d'Agrado through arbitration. If you do not follow this procedure by your thirty (30) day deadline to do so, then you and Motivo d'Agrado shall both be bound by the terms of this section entitled Dispute Resolution by Binding Arbitration.
If any portion of this Section entitled "Dispute Resolution by Binding Arbitration" is found to be unenforceable, that provision shall be severed with the remainder of this Section remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Arbitration Provision shall be null and void. The terms of this Arbitration Provision shall otherwise survive any termination of this Agreement.
- Initiation of Arbitration Proceeding: If either You or Motivo d'Agrado decide to arbitrate a Dispute, we agree to the following procedure:
- Entire Agreement: This Agreement contains our entire understanding and agreement regarding your use of the Website, and supersedes any and all prior agreements and understandings regarding its subject matter. No failure or delay by either of us in exercising any right, power or privilege under this Agreement will operate as a waiver of that right, power or privilege, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. We are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect.
- Survival: Section II. C, D, and E, Section III A, B, and C, Section IV B, Section V A, Section VII, Section VIII, Section IX, Section X, and Section XI of this Agreement survive any suspension, limitation of access to, termination, removal of Content or ban on your use of the Website, C&B and/or Services.