Custom Ink Business Solutions - Terms and Conditions

These Custom Ink Business Solutions Terms and Conditions (“Business Solutions Terms”) are between CustomInk, LLC (“Custom Ink”) and the person and/or company using Custom Ink’s online platform (the “Site”), purchasing products from Custom Ink and using the services offered by Custom Ink (collectively the “Services”), which we will refer to throughout as “You”, “Your”, and “Client”. By using the Site, buying products, and/or using the Services offered by Custom Ink, You are agreeing to these legally binding Business Solutions Terms, as well as the User Agreement & Policies, Privacy Policy, Custom Ink Content Standards and all other rules on the Site (all of the foregoing collectively referred to as the “Terms & Conditions”, which together with any Custom Ink Business Solutions Order Form you may sign comprises a binding and enforceable agreement (the “Agreement”). You agree to use the Services solely as provided in the Agreement. You and Custom Ink are each a “Party” and together are the “Parties.”

1. NATURE OF SERVICES

   1. PRODUCT PRINTING:

      Custom Ink shall arrange for the printing and distribution of the products You select as customized with certain designs, layouts, artwork, taglines, trademarks, logos, and such other assets provided by You (the "Client Content") or designed by Custom Ink (the "Customized Products"). Client Content must adhere to the Custom Ink Content Standards.

   2. DESIGN SERVICES:

      If Custom Ink design services are requested by You, Custom Ink shall provide design services and shall provide or develop content or other materials for such design services ("Design Service Materials") which may be included on the Customized Products (with or without Client Content).

   3. ONLINE STORE HOSTING, INVENTORY AND FULFILLMENT:

      If an online store is requested by You, You can be a store organizer or seller of products via an online store and Custom Ink will include the Customized Products you’ve selected within an online store hosted via the Site (“Store”). Custom Ink shall fulfill all Client’s customers’ orders through the Store (each an “Order”) consistent with other orders placed on the Site. Custom Ink shall also accept Orders from Client’s designated contact on a rolling basis (“Client Orders”). For sake of clarity, returns and cancellations of Orders and Client Orders will be made in accordance with the Terms & Conditions.

   4. INVENTORY MANAGEMENT:

      If inventory management services are requested by You, Custom Ink may hold some or all of Your purchased Customized Product(s) in inventory upon Your purchase and before delivery of such items (“Inventory”), subject to the terms of the Agreement and Your payment of any additional charges.

      You agree that, upon Your request, Custom Ink will ship Customized Products held in Inventory to You or Your designee subject to the terms of the Agreement and Your payment of any additional charges required by Custom Ink, including, without limitation, additional charges for shipment.

      You agree to accept all liability for all Customized Products held in Inventory and any and all additional charges that may apply. Title to Customized Products held in Inventory, as well as the risk of loss for such Customized Products, passes to You when Custom Ink delivers these items to the carrier. In the event that You request shipment of Customized Products held in Inventory and subsequently cancel a portion or all of such request, You will be liable for any and all applicable cancellation, restocking, and similar charges imposed by Custom Ink.

      Custom Ink’s obligations regarding Customized Products held in Inventory will be limited to a duty to exercise reasonable care in handling and storage of such. You agree that Custom Ink may choose to no longer hold certain Customized Products held in Inventory and require You to take physical possession of such Customized Products at any time and for any reason, and further, Custom Ink may suspend or terminate its Inventory option, in its sole discretion at any time and for any reason.

      In the event that Custom Ink requires You to take physical possession of Customized Products held in Inventory, Custom Ink will require You to provide an address for delivery and pay any additional charges for shipment within thirty (30) days’ from receipt of notice, unless otherwise mutually agreed by the Parties in writing. Custom Ink reserves the right to destroy any Customized Products held in Inventory that remain unclaimed after such period.

   5. PROMO CODE; VOUCHER:

      From time to time, Client may offer certain promotional discount codes or vouchers enabling Client’s customers to receive Customized Products through the Store at a discount (each, a “Discount” and collectively, “Discounts”). The Parties shall mutually agree upon the offer and distribution of Discounts, provided however, unless expressly agreed otherwise in writing, Client shall be responsible for the full subsidy of any Discount. Custom Ink shall collect payment from Client for the Discounts applied for all Orders.

2. CLIENT RESPONSIBILITIES

   1. ACCOUNT REGISTRATION:

      To use the Services, You must register and set up a user account on the Site (“Account”) and provide all requested information, which may include Your full legal name and a valid email address. Custom Ink may reject Your application for an Account, or cancel an existing Account, for any reason, in its sole discretion. By registering for an Account and otherwise using the Services, You represent and warrant that (a) You are at least eighteen (18) years of age or at least the age of majority in the jurisdiction where you reside and from which you use the Services and (b) You have provided us with true, accurate and current information during the registration process. You acknowledge and agree that erroneous information may lead to inability for Custom Ink to make payments to You. You represent and warrant that You will provide and maintain true, complete and current Account information, as long as Your Account remains active, with updates as necessary. Registration data and other information that You provide are governed by Custom Ink’s Privacy Policy. A Client younger than the age of majority in the jurisdiction from which it uses the Services may not access or use the Services in any manner. By providing Your contact information to Custom Ink, You agree that Custom Ink may contact You in connection with Your Account. You are solely responsible for all activities that occur under Your Account and for ensuring that You exit or log out of Your Account at the end of each session of use. Your password is confidential, and You may not give it to anyone else. You will notify Custom Ink immediately of any unauthorized use of Your Account or password or any other breach of security known or suspected by You.

   2. CLIENT/CONTRACTING PARTY:

      If You are signing up for the Services and establishing a Store on behalf of Your employer or an organization, Your employer or the organization will be the contracting party and the Client, in which case, You must use Your employer or organization-issued email address and You represent and warrant that you have the authority to bind your employer or organization to the Agreement.

   3. DESIGN:

      Client may create, design, and arrange certain Client Content developed by Client or on behalf of Client by a third party to be incorporated into the Customized Products. If Custom Ink is providing Design Service Materials, Client may provide certain Client Content for incorporation.

   4. LICENSE:

      Client hereby grants to Custom Ink a non-exclusive license to use Client Content and Client's name, image and likeness ("Client IP") in connection with the printing, incorporation, and distribution of the Customized Products, and any distribution on, or other promotion of, the Site including as part of a Store where applicable. Subject to Client's prior written approval in each instance where any modifications are material in nature, Custom Ink reserves the right to use in whole or in part and/or cut, edit, crop and rearrange Client's Content, Client IP, or other Client proprietary material as necessary for purposes related to the Customized Product(s), the Store and the Site. To the extent the Client Content includes any third-party names, likeness, logos, or trade identifiers, such third-party contributions shall be deemed Client Content. Client shall be solely responsible for obtaining all rights and permissions necessary to grant the third-party licenses herein. Client will not provide any Client Content for which it cannot grant the licenses described in this paragraph.

3. PAYMENT:

   Unless otherwise stated on an Order Form, Custom Ink shall collect payment from Client or Client’s customers (e.g., during check out on the Store) for all Client Orders received and Discounts applied using methods made available to Client and/or its customers. In Custom Ink’s sole discretion it may elect to provide certain Clients with credit and in those instances, all invoices must be paid according to the terms therein. If you will receive a payment from Custom Ink, please note that payments come from our service provider, Tipalti; click here to view the Terms and Conditions that apply to your receipt of payments.

4. REPRESENTATIONS AND WARRANTIES

   1. GENERAL:

      Each Party hereby represents and warrants that: (i) it has the authority to enter into this Agreement, to grant the rights granted herein, and to fully perform its obligations hereunder, and (ii) this Agreement does not and will not conflict with any of the Party's other obligations to any third parties.

   2. CLIENT:

      Client represents and warrants that: (i) the Client Content, Client IP and/or other material provided by or on behalf of Client does not and will not violate any intellectual property or other rights of a third party, or be libelous or defamatory to any person or brand or company/organization or otherwise illegal; and (ii) Client's grant of all rights granted herein including without limitation, in and to Client Content and Client IP, and the exercise or rights by Custom Ink in and to the Client Content and Client IP does not and will not infringe or violate third party rights. Client will notify Custom Ink of any notice of infringing Client Content or Client IP, and acknowledges that Custom Ink at all times shall have the right to remove such Client Content from any Store upon receipt of notice of infringement.

5. INDEMNIFICATION

   Each Party (an “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party and its affiliates (the “Indemnified Party”) from and against any and all losses, claims damages, costs and expenses (including reasonable attorneys' fees) arising from any third-party claims, suits, actions, settlements, or judgments of any kind arising out of or related to any breach or alleged breach of the Indemnifying Party's representations, warranties, or other covenants herein. Each Indemnifying Party shall have the right to control the settlement and/or defense of the claim provided that the Indemnified Party may participate in its own defense at its own cost and the Indemnifying Party will not settle or compromise the Indemnified Party's rights (except for settlements that are monetary in nature only and paid in full by the Indemnifying Party) without the Indemnified Party's written consent, such consent not to be unreasonably withheld, conditioned or delayed.

6. LIMITATION OF LIABILITY

   EXCLUDING INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, PUNITIVE, LOST PROFITS OR OTHER INDIRECT DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE SAME. CUSTOM INK’S AGGREGATE LIABILITY SHALL NOT EXCEED THE PROCEEDS RETAINED FROM ORDERS IN ANY TWELVE (12) MONTH PERIOD. CLIENT ACKNOWLEDGES AND AGREES THAT THE CUSTOMIZED PRODUCT(S), SITE AND STORE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, NOR DOES CUSTOM INK GUARANTEE ANY MINIMUM SALES OR LEVELS OF SUCCESS IN CONNECTION WITH ANY CUSTOMIZED PRODUCT AND/OR STORE.

7. OWNERSHIP

   Except for the licensed rights granted to Custom Ink, Client shall have all necessary rights, title and/or interest in and to the Client Content and Client IP. Custom Ink is the owner of all right, title, and interest in and to the Site (including all personal or other data that is generated through the Site and any Stores which shall be deemed Confidential Information of Custom Ink), and all enhancements, modifications and improvements, and feedback thereto. Custom Ink is furthermore the owner or licensor of all Design Service Materials, content, data, artwork, trademarks, taglines, or other assets provided by or developed by Custom Ink (collectively the "Custom Ink Materials"). All rights to Custom Ink Materials not expressly granted in the Agreement are reserved by Custom Ink. If Client uses the Design Lab feature included on the SIte (“Design Lab”) to create Customized Products designs, Client’s use of the Design Lab shall be subject to the Site terms and licenses contained therein.

8. TERM

   1. TERM:

      This Agreement shall begin once accepted and will continue in effect until terminated.

   2. TERMINATION:

      Either Party may terminate this Agreement for: (i) convenience upon thirty (30) days prior written notice to the other Party, or (ii) the other Party’s breach of the Agreement upon written notice and an opportunity to cure within five (5) days to the extent curable.

   3. SURVIVAL:

      Sections 3, 4, 5, 6, 7, 8.C, and 9 shall survive expiration or termination of the Agreement.

9. ADDITIONAL PROVISIONS

   1. NOTICES:

      All notices and requests in connection with this Agreement will be deemed given as of the day they are received by email to your designated Custom Ink account rep or to onlinestores@customink.com.

   2. GOVERNING LAW AND ARBITRATION:

      Please Read This Section Carefully Because It Requires You And Custom Ink To Agree To Resolve All Disputes Between Us Through Binding Individual Arbitration. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without application of principles of conflicts of law. All disputes, claims, or differences shall be finally settled by a single arbitrator in an arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Such arbitration shall take place by telephone or video-conference, if practicable as determined by the arbitrator, or in Fairfax, Virginia, if in-person hearings are required. Client agrees that by entering into this Agreement, Client and Custom Ink are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either Party may seek relief in a court of competent jurisdiction solely to seek immediate injunctive relief where (i) such Party stands to suffer irreparable harm absent such relief and/or (ii) individual claims for which applicable law expressly prohibits pre-dispute arbitration agreements, if any, where such law is not preempted by the Federal Arbitration Act.

   3. MISCELLANEOUS:

      Except as expressly set forth otherwise herein, the Agreement (and/or Client's use of the Site, and its content, and any services hereunder) creates no partnership, fiduciary or other professional relationship between the Parties. Each Party's status hereunder is that of an independent contractor. Each Party understands and agrees that as an independent contractor, it will not be considered an employee of the other Party for any purpose, including tax obligations. This Agreement represents the entire agreement between the Parties concerning the subject matter herein and supersedes any other oral or written agreements between the Parties regarding this matter. Custom Ink may at any time, in its sole discretion, revise the Agreement by updating the Site. You are bound by any revisions and should periodically visit the Site to review the current Terms & Conditions that apply to Your use of the Site. If any part, term, or provision of the Agreement shall be held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any relevant law, the remaining portions or provisions shall still remain valid and continue in full force and effect. No waiver, express or implied, by either Party of any term or condition or of any breach by the other of any of the provisions of the Agreement shall operate as a waiver of any breach of the same or any other provision of the Agreement. The Agreement shall be binding upon and inure to the benefit of the each of the Parties and their respective heirs, successors and assigns. Client may not under any circumstance (except for any assignment of payment) assign its respective rights or obligations hereunder without Custom Ink's prior written consent.

   4. ORDER OF PRECEDENCE:

      In the event of any inconsistency between the terms of any Order Form, these Business Solutions Terms and/or the Terms & Conditions, the order of precedence shall be: (a) the Business Solutions Terms; (b) the Order Form (if applicable); (c) the User Agreement & Policies; (d) Privacy Policy; (e) Custom Ink Content Standards; and (f) all other rules on the Site unless otherwise expressly amended or overridden in such Order Form with specific reference to the conflicting terms that are intended to be amended or overridden.