Terms and Conditions
Effective Date of Last Revision: February 27, 2015
Basic Description of User Participation on the Site
The Site is developed and operates using a variety of terms and phrases. The more commonly used terms are defined in more detail below. To summarize generally how the Site functions:
- Product Ideas are submitted by Users. The Community evaluates submitted Product Ideas and the Company may, at its sole discretion, taking into consideration a variety of factors, including the Community input select a Product Idea for development and/or commercialization, production and sale. Users may withdraw a Product Idea from evaluation at anytime prior to selection of that Product Idea by the Company. If the Company has not identified a Product Idea as under consideration within thirty days following submission of such Product Idea by a User, such User may elect to withdraw such Product Idea or make such Product Idea accessible only to Quirky and Quirky's trusted partners for further consideration for commercialization.
- Users who submit Product Ideas will receive detailed analytics related to User feedback and input for that Product Idea, which may be used as a form of market research.
- Selected Product Ideas will be subject to one or more phases, each of which is targeted to get Community ideas, suggestions and input related to a specific aspect of the development of the Product Idea (e.g. the selection of a name, or the color scheme for product).
- For each phase, Users post their suggestions or ideas to solve or address the problem presented in that phase.
- Users are credited with "Influence" on a particular Product Idea through their participation on the Site, including submitting Product Ideas, evaluating Product Ideas and participating in phases.
- Once all the phases related to a Product Idea are completed, the Company may then commercialize the Product Idea by manufacturing and selling a physical embodiment of the Product Idea and/or transferring intellectual property rights in the Product Idea to another party.
- The Company will distribute a portion of all revenue generated from the commercialization of a Product Idea, selected and developed through the Site, to those Users who participated in the development of the Product Idea, in proportion to each User's Influence, which is determined through the Company's proprietary and confidential algorithms.
THE SELECTION, DEVELOPMENT, MANUFACTURE, SALE AND COMMERCIALIZATION OF ANY PRODUCT IDEA IS SUBJECT TO THE COMPANY'S SOLE AND ABSOLUTE DISCRETION AND THE COMPANY RESERVES THE RIGHT, FOR ANY OR NO REASON, TO (I) REJECT ANY SUBMITTED PRODUCT IDEA, (II) REFUSE TO POST ANY SUBMITTED PRODUCT IDEA TO THE SITE, (III) TERMINATE THE DEVELOPMENT OR ANY PHASE RELATED TO A PRODUCT IDEA, (IV) TERMINATE THE SALE AND OR MANUFACTURE OF ANY PRODUCT IDEA, OR (V) SELL OR LICENSE A PRODUCT IDEA, AND/OR ANY INTELLECTUAL PROPERTY RELATED THERETO, TO ANY THIRD PARTY.
Commonly Used Terms and their Definitions
All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meaning listed below:
- "Accepted Product Idea" means any Product Idea that is selected by the Company for development and/or commercialization.
- "Idea Submitter" means any User that pays to submit a Product Idea to the Site.
- "Influence" is the measure of a User's contribution to a Product Idea, as determined solely at the discretion of the Company.
- "Intellectual Property Rights" means any Invention, writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, trade secret or similar laws.
- "Inventions" includes ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.
- "Person" means any individual, trust or legal entity.
- "Personally Identifiable Information" means information that can be reasonably linked to a specific User. "Product Idea" means a product concept, design or idea that is submitted by a User to the Site as a Product Idea.
- "Product IP Royalty Base" is the monetary sum upon which a royalty (a "Product IP Royalty") is assessed and paid to the Company from the sale or license of Intellectual Property Rights in a particular Accepted Product Idea, in connection with a Convertible Percent IP Royalty Transaction. Product IP Royalty Base shall be determined on a calendar year quarterly basis and the Company will make distributions within 90 days thereafter of confirming receipt by Company of Product IP Royalty payment due in connection with a Convertible Percent IP Royalty Transaction, to those Users who are allocated a percentage of such Product IP Royalty Base as provided for herein.
- "Product IP Revenue" is the total gross revenue actually received by the Company from the sale or license of Intellectual Property Rights in a particular Accepted Product Idea, less all direct offsets against gross revenue during the applicable period related to such Intellectual Property Rights, whether from a Convertible Percent IP Transaction, Ten Percent Transaction or Thirty Percent Transaction, but not from a Convertible Percent IP Royalty Transaction. Product IP Revenue shall be calculated on a calendar year quarterly basis and the Company will make distributions within 90 days thereafter of confirming Product IP Revenue from a Convertible Percent IP Transaction, Ten Percent Transaction or Thirty Percent Transaction, as the case may be, to those Users who are allocated a percentage of such revenue as provided for herein.
- "Product Sales Revenue" is the total gross revenue actually received by the Company from the sale, distribution or marketing of a manufactured and delivered product that originates out of a particular Accepted Product Idea, less all returns, warranty claims, charge backs and other direct offsets against gross revenue during the applicable period related to that specific product whether from a Convertible Percent Product Transaction, Ten Percent Transaction, Thirty Percent Transaction or Web Store Sale. Product Sales Revenue shall be calculated on a calendar year quarterly basis and the Company will make distributions within 90 days thereafter of confirming Product Sales Revenue from a Convertible Percent Product Transaction, Ten Percent Transaction, Thirty Percent Transaction or Web Store Sale, as the case may be, to those Users who are allocated a percentage of such revenue as provided for herein.
- "Proprietary Information" includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.
- "Rejected Product Idea" means any Product Idea that is not selected by the Company for development and/or commercialization.
- "Site Content" means all information on the Site and available through the Services, including without limitation designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format, and their selection and arrangement.
- "Convertible Percent IP Transaction" means the licensing or assignment of Intellectual Property Rights associated with an Accepted Product Idea submitted on or after February 27, 2015, resulting in Product IP Revenue.
- "Convertible Percent IP Royalty Transaction" means the licensing or assignment of Intellectual Property Rights associated with an Accepted Product Idea submitted on or after February 27, 2015, resulting in a Product IP Royalty paid to, and actually received by, Company based upon a Product IP Royalty Base.
- "Convertible Percent Product Transaction" means any transaction resulting in Product Sales Revenue associated with an Accepted Product Idea submitted on or after February 27, 2015.
- "Ten Percent Transaction" means any transaction resulting in Product Sales Revenue or Product IP Revenue associated with an Accepted Product Idea submitted: (a) on or after July 10, 2013 and prior to February 27, 2015; or (b) on or after March 1, 2010 and prior to July 10, 2013, other than a Thirty Percent Transaction.
- "Thirty Percent Transaction" means: (a) a Web Store Sale resulting in Product Sales Revenue or the licensing or assignment of Intellectual Property Rights resulting in Product IP Revenue, in each case associated with an Accepted Product Idea submitted prior to July 10, 2013; or (b) any transaction resulting in Product Sales Revenue or Product IP Revenue associated with an Accepted Product Idea submitted prior to March 1, 2010.
- "User" is anyone that creates an account online and is registered to post content on the Site and includes all other Persons who participate on the Site other than the Company.
- "User Content" includes all information that a User may transmit to the Site and which may become available for use or display, including without limitation all designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format. User Content also includes information a User provides to Quirky outside of the Site in relation to User Content transmitted to the Site, and such information shall constitute User Content transmitted to the Site under this Agreement.
- "Web Store Sale" means a sale through the Site web store currently located at www.quirky.com/shop resulting in Product Sales Revenue.
Quirky Control of the Site and Services
You acknowledge that Quirky is a service provider that has created the Site to allow Users to interact via the Site regarding topics and content chosen by Users, and that Users can alter the information presented on the Site on a real-time basis. Quirky generally does not regulate the content of communications between Users or Users' interactions with the Services. As a result, Quirky has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of User Content provided by Users. Nonetheless, Quirky reserves the right to monitor and/or limit any User Content posted by a User to the Site, including, without limitation Product Ideas.
Other Parties Rights in Content
You acknowledge that: (i) by using the Site you will have access to User Content provided by other Users, and (ii) User Content and Site Content may be provided under license by independent content providers, including contributions from other Users. The Company may not pre-screen User Content submitted by Users to the Site. You acknowledge that the Company and other Users have rights in their respective Site Content and User Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Services or posting on the Site. You accept full responsibility and liability for your use of any Site Content or User Content in violation of any such rights. You agree that your creation or submission of any User Content is not in any way based upon any expectation of compensation from the Company or any other Users.
You agree that the Company has the absolute right and permission to use your name, voice, image, likeness, and your applicable User compensation information, including for example any commissions paid and your Influence percentage, as well as representations made by you, in any media (including, without limitation, television, print, radio and the Internet), world-wide, for the purposes of advertising, promoting, reporting and disseminating information about the Company, the Company's business or an Accepted Product Idea.
Payments by Users for Market Research Data
The Site has been created primarily to provide low-cost market research to a Person with respect to Product Ideas. An Idea Submitter must pay the advertised fee to submit a Product Idea to the Community. The Site will collect and organize feedback received from the Community with respect to each Product Idea and will provide the results to the Idea Submitter. The Company makes no representations or warranties regarding the volume or quality of any feedback provided and each Idea Submitter acknowledges and agrees to bear the risk that Users may not provide any meaningful feedback with respect to a Product Idea.
Payments by the Company to Users
While one aspect of the Site is to provide Users, including Idea Submitter's with the right to share in Product IP Revenue, Product Sales Revenue and Product IP Royalty, Users should not participate on the Site or in the Services primarily for financial gain, as any actual monetary compensation actually received by a User in connection with the Site, may or may not bear any relation to the actual time invested on the Site, or the quality or quantity of User Content submitted, or Influence allocated. The Company will make 30% of Product IP Revenue and Product Sales Revenue from Thirty Percent Transactions and 10% of Product IP Revenue and Product Sales Revenue from Ten Percent Transactions available for distribution to those Users who are allocated Influence in the underlying Accepted Product Idea generating the Product IP Revenue and/or Product Sales Revenue. The Company will make 10% of Product IP Revenue from Convertible Percent IP Transactions available for distribution to those Users who are allocated Influence in the underlying Accepted Product Idea generating the Product IP Revenue, provided however that once the total rewards associated with an Accepted Product Idea reaches $500,000, from that point forward the Company will instead make 5% of Product IP Revenue from Convertible Percent IP Transactions available for distribution to those Users who are allocated Influence in such underlying Accepted Product Idea generating the Product IP Revenue. The Company will make 3.5% of the Product IP Royalty Base associated with a Convertible Percent IP Royalty Transaction available for distribution to those Users who are allocated Influence in the underlying Accepted Product Idea associated with the Product IP Royalty Base, provided however that once the total rewards associated with an Accepted Product Idea reaches $500,000, from that point forward the Company will instead make 1.5% of the Product IP Royalty Base associated with a Convertible Percent IP Royalty Transaction available for distribution to those Users who are allocated Influence in such underlying Accepted Product Idea associated with the Product IP Royalty Base. The Company will make 5% of Product Sales Revenue from Convertible Percent Product Transactions available for distribution to those Users who are allocated Influence in the underlying Accepted Product Idea generating the Product Sales Revenue, provided however that once the total rewards associated with an Accepted Product Idea reaches $500,000, from that point forward the Company will instead make 3% of Product Sales Revenue from Convertible Percent Product Transactions available for distribution to those Users who are allocated Influence in such underlying Accepted Product Idea generating the Product Sales Revenue. Because the Company may elect in its sole discretion to cease commercializing any Accepted Product Idea, there can be no guarantee that you will ever receive any payments or actual compensation in connection with participating on the Site or providing User Content even if you participate or provide User Content. Quirky makes no representations or warranties regarding any actual monetary compensation that may be earned in connection with use of the Site or the Services. Quirky's obligation to pay Product IP Revenue, Product Sales Revenue and Product IP Royalty to Users, who are allocated such amounts pursuant to the Site, is limited to paying such allocations based upon Product IP Revenue, Product Sales Revenue and Product IP Royalty that is actually received by Quirky. Notwithstanding any Product IP Revenue, Product Sales Revenue and Product IP Royalty that may be allocated to your account, Quirky shall be under no obligation to distribute such amount to you until such time as the aggregate amount payable in your account exceeds $50. The Company will calculate all payments owed by the Company to a User as set forth above, on a daily basis, based on the previous day's sales of a Accepted Product Idea. All amounts earned by a User shall be rounded down to the nearest tenth of cent. If the total amount that a User earns (including from Convertible Percent IP Transactions, Convertible Percent IP Royalty Transactions, Convertible Percent Product Transactions, Ten Percent Transactions and Thirty Percent Transactions) for the previous day is less than a tenth of penny (e.g. $.001) then such amount shall be rounded down to zero and no amount will be credited to the User. Quirky reserves the right to reset all User accounts, for which the User has not logged in within the prior two years, below $50 to $0 and to write-off all such unpaid amounts and Quirky shall have no liability for any such write-offs. Prior to resetting any such account to $0, Quirky will contact the User associated with the account at the email address associated with the account, and request that the User log into the account within thirty days. If the User logs into the account within thirty days, Quirky will not reset the account balance. Quirky also reserves the right to withhold or forfeit payments due to any User that has breached this Agreement or any of the other guidelines related to use of the Site. The Company will make payments to Users, upon request from Users for payments, by check, ACH, wire transfer (fee assessed to User) or through any other commercially reasonable manner adopted by the Company from time to time. Subject to the foregoing terms, upon the death of a User, Quirky will direct payments associated with the Influence accruing from the deceased User's participation on the Site prior to such User's death, to a replacement payee if: (a) the Person requesting a replacement payee presents verifiable documentation supporting the replacement payee's legal entitlement to the deceased User's payments, and (b) the request for a replacement payee is received by Quirky within one year from the date of the deceased User's death. If Quirky does not receive a request for replacement payee that complies with the foregoing conditions, Quirky may cancel the deceased User's account, and write-off any unpaid amounts, with no liability for any such write-offs.
Option to Acquire an Accepted Product Idea
If an Accepted Product Idea is not selected by Quirky for manufacturing within nine months of initially launching on the "Upcoming" page of the Site, the Accepted Product Idea Submitter has the option to, within one week of the aforementioned nine month deadline, acquire ownership from Quirky of all Intellectual Property Rights in the commercialized version of the Accepted Product Idea, in return for paying Quirky 10% of all revenues generated from such Intellectual Property Rights in perpetuity, and losing all accrued Influence concerning the Accepted Product Idea. If the Idea Submitter exercises the aforementioned option, Quirky shall receive a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, fully transferable license from the acquirer of the Intellectual Property Rights to use such Intellectual Property Rights in Quirky's business, but not to develop products that compete with the acquired commercialized version of the Accepted Product Idea. The foregoing acquisition of Intellectual Property Rights shall be contingent upon the acquirer signing Quirky's standard intellectual property assignment and license agreement memorializing the foregoing terms. All net revenues, less associated costs such as, without limitation, attorney fees, actually received by Quirky in connection with the foregoing option shall be included with Product Sales Revenue when determining payments to Users under the above section titled "Payments by the Company to Users."
Tax Withholding and Quirky Payee Information Form
You acknowledge and agree that you are responsible for all taxes due on any payments made to you in connection with your participation on the Site. The Company will be under no obligation to make any payments to you unless you have properly completed and submitted the Quirky Payee Information Form (the "QPIF") and the information required in the registration process related to backup withholding taxes. Backup withholding taxes are a type of withholding for federal income taxes on certain types of income. Quirky may be required by law to withhold these taxes from amounts payable to you unless you are otherwise exempt from backup withholding. US citizens and resident aliens will typically be exempt from backup withholding if they properly report their name and Social Security number to Quirky on the QPIF and that information matches the IRS records.
Service Interruptions and Site Changes
Quirky reserves the right to interrupt the Site with or without prior notice for any reason or no reason. You agree that Quirky will not be liable for any interruption of the Site, delay or failure to perform. Quirky has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site and/or the Services as it sees fit in its sole discretion.
Certain aspects of the Site, such as posting a Product Idea, may be for a fee or other charge. These fees and charges are described on the Site, and in the event you elect to use paid aspects of the Services, you agree to the pricing, payment and billing policies applicable to such fees and charges, posted on the Site. Quirky may add new services for additional fees and charges, or proactively amend fees and charges for existing services, at any time in its sole discretion. All fees paid to the Company are solely for services provided by the Company through the Site and no payments made in connection with the Site should be made with any expectation by a User to receive any return payment, including any portion of Product IP Revenue, Product Sales Revenue or Product IP Royalty, from the Company.
Registration Data; Account Security
In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data and any other information you provide to Company, and keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
Proprietary Rights in Site Content; Limited License
Ownership of User Content
The Company and each User that is a party to this Agreement acknowledges and agrees that, subject to the terms and conditions of this Agreement, Users may retain any and all applicable Intellectual Property Rights with respect to any User Content that a User creates or submits using the Services, to the extent such User has such rights under applicable law.
In connection with any Accepted Product Idea, to the extent that you submit User Content in connection with that Accepted Product Idea and your User Content is incorporated or made part of any commercialized version of that Product Idea, you hereby assign (and you represent and warrant that you have the right to assign) to Company, and agree to deliver such additional assignments or other instruments of transfer or Intellectual Property Rights perfection as may be reasonably requested by the Company, all of your right, title and interest in such User Content, including without limitation all Intellectual Property Rights. You further agree that you will not make any claims against the Company or any third party who is assigned or licensed rights in such User Content by the Company, based on any allegations that any activities by the Company or such third party infringe your (or anyone else's) Intellectual Property Rights in such User Content. You further acknowledge and agree that in connection with any such assignment you reserve no rights whatsoever and the Company shall have the right to enforce all Intellectual Property Rights in such User Content against you and any subsequent use by you of such User Content. You further acknowledge and agree that any compensation that you might receive as a result of submitting such User Content and its inclusion in a successfully commercialized Product Idea, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting User Content on the Site. The provisions of this Section may be specifically enforced by either the Company or any third party who is assigned or licensed rights in such User Content by the Company, and any such third party is intended to be a third party beneficiary of this provision.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your User Content hereunder, including without limitation, any rights or obligations you may or may not have concerning open source software; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Site, including without limitation any legal consequences relating to your or any other Person's Intellectual Property Rights or Proprietary Information; and (iii) Quirky's acknowledgement hereunder of your Intellectual Property Rights in your User Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of the Company's intention not to require Users of the Site to forego certain Intellectual Property Rights with respect to User Content they submit to the Site, subject to the terms of this Agreement, including without limitation each User's agreement to assign all right, title and interest in User Content that is included in a commercialized Accepted Product Idea.
Quirky retains ownership of User account data, regardless of any Intellectual Property Rights in User Content.
You agree that even though you may retain certain copyright or other Intellectual Property Rights with respect to User Content that is submitted on the Site, you do not own the account you use to access the Site, nor do you own any data Quirky stores on its servers (including without limitation any data representing or embodying any or all of your User Content). Your Intellectual Property Rights in any User Content, if any, do not confer any rights of access to the Site, the Services or any rights to data stored by or on behalf of the Company.
"QUIRKY" and other Quirky product names, brands, graphics, logos, designs, page headers, button icons, scripts and service names used by Quirky to identify the Services, Site and/or other services and/or products owned by Quirky are registered trademarks, trademarks or trade dress (collectively, the "Marks") of Quirky in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Quirky and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
Conduct by Users; Prohibited Conduct
You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Site any User Content that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person's Proprietary Information; (ii) impersonate any Person without their consent, including, but not limited to, a Quirky employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the Site any User Content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Site any User Content as determined by Quirky at its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the Site any User Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personally Identifiable Information; (vi) take any action or upload, post, email or otherwise transmit to or via the Site any User Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (ix) attempt to gain access to any other User's account or password; or (x) "stalk", abuse or attempt to abuse, or otherwise harass another user; (xi) charge any third party for use of the Site or the Services; or (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Site or any of its algorithms that are utilized to allocate Influence. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any accrued Influence and any amounts otherwise due to you from the Company.
User Presentation of Quirky or Quirky Products
Users may choose to produce a web application (including, without limitation, a website, blog, Facebook page, Twitter page, or similar) promoting or otherwise presenting Quirky or Quirky products.
Any such application must comply with the following guidelines:
- Post the following notice clearly and conspicuously on each and every page within an application: "This application is not affiliated with, endorsed by, or in any manner provided or controlled by Quirky, Inc. Quirky, Inc. assumes no liability for the content of this application."
- If using any Quirky branding (including, without limitation, Quirky or Quirky product brand names or logos), do not distort or alter the brand appearance. For example, don't change any spelling, don't add or merge words, don't alter color, font or dimensions.
- If using any Quirky created imagery (still photos or videos), include the following attribution: "©Quirky, Inc. All rights reserved." adjacent to each instance of imagery.
- Don't claim any untrue association with Quirky. Quirky Users are not employees, consultants, contractors or agents of Quirky.
- Don't include the Quirky name or other Quirky brand name in a domain name (including, without limitation, Facebook page URL or Twitter page URL).
Resale of Products
If you purchase a product through this Site, and receive Influence associated with the corresponding Product Idea at any point in time, such purchase is expressly subject to your compliance with your agreement and commitment not to sell such product in new and unused condition at a price lower than the price then offered by Quirky at the Site at the time of your resale. Any violation by you of the foregoing condition may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any accrued Influence and any amounts otherwise due to you from the Company. Quirky expressly reserves the right to impose additional conditions on product purchases, such as, without limitation, volume restrictions and additional retail distribution terms and conditions.
User Submitted Prototypes
Unless otherwise stated in writing and signed by an authorized Quirky employee, we cannot and do not guarantee that any physical prototype provided by a User to Quirky will be returned or not damaged. Users provide physical prototypes to Quirky at their own risk, and Quirky does not represent or warrant the return or condition of prototypes, and disclaims any liability relating thereto.
Copyright Infringement Complaints
We respect the intellectual property rights of others and we prohibit Users from uploading, posting or otherwise transmitting on the Site or via the Services any materials that violate another party's Intellectual Property Rights or that constitutes another Person's Proprietary Information. Any infringing materials posted by any User can be identified and removed pursuant to Quirky's Digital Millennium Copyright Act (the "DMCA") compliance process, provided herein, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe that any Site Content infringes a copyright, please send a notice of copyright infringement containing the following information to email@example.com:
- Identification of copyrighted material allegedly being infringed, including an attached file containing the copyrighted material;
- Identification of the Site Content claimed to be infringing including the specific location within the Site of the allegedly infringing Site Content;
- Your contact information, including address, telephone number and e-mail address, and if you are not the owner of the copyright that has been allegedly infringed, an explanation of your relationship to the copyright owner;
- A statement that you have a good faith belief that the allegedly infringing Site Content is not authorized by the copyright owner, its agent, or the law, and that under penalty of perjury, the information provided is accurate, and you are authorized to make the complaint on behalf of the copyright owner; and
- Your signature.
Quirky will, upon receiving your notice of copyright infringement, if that notice complies with the foregoing five requirements, take one or more of the following actions: (a) reasonably determine that the allegedly infringing Site Content is not infringing, and allow the Site Content to remain, (b) contact the Person who posted the allegedly infringing Site Content concerning your notice of infringement, and (c) remove the allegedly infringing Site Content. By your use of this Site, you expressly agree to and accept the foregoing DMCA compliance process, acknowledge its compliance with U.S. Copyright law, and waive any and all claims against Quirky directly relating to, or arising from, the foregoing DMCA compliance process.
Repeat Infringer Policy
In accordance with the DMCA and other applicable law, Quirky has adopted a policy of terminating, in appropriate circumstances and at Quirky's sole discretion, Users who are deemed to be repeat infringers. Quirky may also at its sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any Intellectual Property Rights or who disclose Proprietary Information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise be or may become due from the Company to any User, who has submitted User Content that infringes any Intellectual Property Rights or discloses Proprietary Information of any other Person is subject to forfeiture, at the sole discretion of the Company.
Monitoring User Content
Quirky is not responsible or liable in any manner for any User Content posted on the Site or in connection with the Services. Although we provide rules for User conduct and postings, we do not control and are not responsible for what Users post, transmit or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable Site Content you may encounter on the Site or in connection with any User Content. The Company is not responsible for the conduct, whether online or offline, of any User of the Site or Services.
Disputes Between Users
As a condition of access to the Site and the Services, you release Quirky (and Quirky's shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Users of the Site; including, without limitation, any claim that another User infringes upon your Intellectual Property Rights in any User Content that you may provide. You further understand and agree that: (a) Quirky will have the right but not the obligation to resolve disputes between Users relating to the Services, and Quirky's resolution of any particular dispute does not create an obligation to resolve any other dispute; (b) to the extent Quirky elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the Services and will not make judgments regarding legal issues or claims; (c) Quirky's resolution of such disputes will be final with respect to the Site, and any allocation of Influence or the allocation of any payments due to Users related to the foregoing, but will have no bearing on any real-world legal disputes in which Users of the Services may become involved; and (d) you hereby release Quirky (and Quirky's shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Quirky's resolution of disputes relating to the Site or the Services.
All Data on the Company's Servers is subject to Deletion, Alteration or Transfer
When using the Site or the Services, you may accumulate Site Content, Influence, objects, items, scripts, or other value or status indicators that reside as data on the Company's servers. THIS DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON QUIRKY'S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN QUIRKY'S SOLE DISCRETION. Notwithstanding the foregoing, the Company will maintain back-up records related to any actual accumulated unpaid cash amounts earned by Users, and to the extent such information is deleted or otherwise altered, the Company will use its best efforts to accurately recreate such information to satisfy its payment obligations.
YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE WITH RESPECT TO USER CONTENT YOU POST ON THE SITE, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH USER CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, QUIRKY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE USER CONTENT OR SITE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE COMPANY'S SERVERS.
YOU UNDERSTAND AND AGREE THAT QUIRKY HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY SITE CONTENT (INCLUDING YOUR USER CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.
All Services are Provided "as is" Without Express or Implied Warranties
QUIRKY PROVIDES THE SITE, THE SERVICES, YOUR ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the Services, the Site or your account, and you understand that you shall not be entitled to make any claim based on Quirky's failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.
All Services Provided and Sales Made on "as is", no refund basis
THERE WILL BE NO REFUNDS FOR ANY REASON UNLESS OTHERWISE STATED BY THE COMPANY IN WRITING ON THIS SITE. ALL SALES MADE BY THE COMPANY ARE FINAL, MADE WITHOUT ANY GUARANTEE, STRICTLY ON AN "AS IS" BASIS, AND PROVIDED AND ACCEPTED AT YOUR OWN RISK. QUIRKY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BY MAKING A PURCHASE WITH THE COMPANY, YOU HAVE READ AND UNDERSTAND OUR NO REFUNDS POLICY.
Notwithstanding the foregoing, the Company will refund fees paid to post a Product Idea if such idea is rejected by the Company and not posted to the Site for Community review and feedback.
Notwithstanding the foregoing, a Web Store Sale shall be pursuant to the terms of the Company's Original Purchase Product Warranty in effect on the date of such Web Store Sale, which can be found at http://www.quirky.com/shop/warranty.
Quirky's liability to you is expressly limited, to the extent allowable under applicable law
IN NO EVENT SHALL QUIRKY OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICES OR THE SITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL QUIRKY'S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Quirky shall not be held responsible or liable for anything that occurs or results from accessing the Site or participating in the Services.
You hereby agree to defend, indemnify and hold harmless Quirky, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns and other Users of the Services, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of this Agreement by you, or from your use of the Services. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors, successors and assigns from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any claims by third parties that your activity on the Site or your User Content (including your User Content as incorporated in a commercialized Product Idea) infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.
Quirky complies with the U.S. - EU Safe Harbor framework and the U.S. - Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of personal data from European Union member countries and Switzerland. Quirky has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access and enforcement. To learn more about the Safe Harbor program and to view Quirky's certification, please visit http://www.export.gov/safeharbor/.
If you have any complaints regarding our compliance with the Safe Harbor you should first contact us at firstname.lastname@example.org. If contacting us does not resolve your complaint, you may raise your complaint with TRUSTe at https://feedback-form.truste.com/watchdog/request, fax to 415-520-3420, or mail to TRUSTe Safe Harbor Compliance Dept. at the relevant address listed at http://www.truste.com/about-TRUSTe/contact-us. If you are faxing or mailing TRUSTe to lodge a complaint, you must include the following information: the name of Company, the alleged privacy violation, your contact information, and whether you would like the particulars of your complaint shared with the Company. For information about TRUSTe or the operation of TRUSTe's dispute resolution process, point your Internet bowser to https://feedback-form.truste.com/watchdog/request, or request this information from TRUSTe at any of the addresses listed at http://www.truste.com/about-TRUSTe/contact-us. The TRUSTe dispute resolution process shall be conducted in English. For human resources data we have agreed to cooperate with national data protection authorities, a list of which can be found at http://ec.europa.eu/justice/data-protection/bodies/authorities/index_en.htm.
COLLECTION AND USES OF YOUR PERSONAL INFORMATION
You acknowledge and agree that Quirky, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Services. Except as otherwise provided herein, including without limitation, in the Section "Media Waiver", the Personally Identifiable Information you provide to us is used for the Company's internal purposes only. Quirky uses the information it collects to learn what you like and to improve the Services.
Depending on what Services you use on the Site, Quirky may request Personally Identifiable Information from you, including but not limited to your full name, a valid email address and username and/or password, billing address, credit card information, proof of identification and physical mailing address.
You are required to provide a valid email address during User registration that will represent your identity on the Site. You may opt to provide your full name, gender, birthday, location and other personal information to be publicly displayed in connection with your account and activity on the Site. While we'd prefer that all Users use their real names, Quirky offers an alias option for those who'd prefer more anonymity.
Your chosen name is publicly displayed and connected to your Site activity. Other information visitors to the Site may see includes, without limitation, your date joined, profile information, feedback, total earnings to date, Product Ideas submitted, Product Ideas influenced.
Some Users may connect to or register a Quirky account using an external third-party application, such as Facebook. Quirky may receive some data from those connected third-party applications. Connecting your Quirky account to third-party applications or services is optional, and when you connect your account to an external application, you will be given the opportunity to grant permission. You can revoke your permission under your Quirky account settings.
You agree that Quirky may communicate with you via email and any similar technology for any purpose relating to the Site.
CONTROLLING AND ACCESSING YOUR PERSONAL INFORMATION
Content in a User profile on the Site is publicly available. Site visitors may be able to identify you, or associate you with your User account if you include Personally Identifiable Information in your profile. The messages you send or receive using the Site are only private to the extent that you and the sender/recipient keep them private. Quirky does not have any control over whether a recipient of one of your personal messages publicly posts it or its contents.
You can access and update your personal information and communication settings by selecting the "Edit Your Profile" option on your account dashboard. You may also terminate your account at any time by emailing Quirky at email@example.com.
SHARING YOUR PERSONAL INFORMATION
Quirky will not give any of your Personally Identifiable Information to any third party or otherwise disclose your Personally Identifiable Information without your express approval except: as reasonably necessary to fulfill your service request or purchase order, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to learn what you like and to improve the Services; to communicate with you regarding the Services and the Company's business; to comply with tax and other applicable law; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; in connection with a merger, sale, reorganization, dissolution or liquidation of Quirky businesses, to prospective or actual acquirers of Quirky assets; or as otherwise necessary to protect the Company, its agents and other users of the Services. Quirky can (and you authorize Quirky to) disclose any information about you to private entities, law enforcement agencies or government officials, as Quirky, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. The Company may share general, demographic, or aggregated information with third parties about its Users and their User Content and Site usage, but that information will not include or be linked to any Personally Identifiable Information without your consent.
SECURITY OF YOUR PERSONAL INFORMATION
Quirky follows generally accepted industry standards for the protection of the Personally Identifiable Information that you submit, both during transmission and after receipt. However, no method of transmission over the Internet or via mobile device, or method of electronic storage, is 100% secure. Therefore, although we strive to use commercially acceptable means to protect your Personally Identifiable Information, we do not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties.
RETENTION OF YOUR PERSONAL INFORMATION
Quirky uses a browser feature known as a "cookie," which is a small text file number that is stored on your hard drive when you begin to navigate the Site. The cookies used by the Site do not contain any Personally Identifiable Information about you, but they may identify your specific computer. If you would like to disable cookies from Quirky, please use the help function in your web browser to restrict cookies from the Site. If you block cookies from Quirky, you may not be able to use certain functions or features of the Site.
Quirky uses third-party advertising services to serve Quirky ads when you visit the Site and sites upon which we advertise (often referred to as "online network advertising"). This advertising technology uses information about your visits to this Site and the sites upon which we advertise (not including your Personally Identifiable Information) to serve Quirky ads to you. In the course of serving Quirky advertisements to you, a unique third-party cookie may be placed or recognized on your browser.
LINKED WEBSITES, SERVICES
The Site may contain links to websites other than the Site, and redirection or pass-through to, or integration of, services other than the Services. Except as set forth herein, Quirky does not share your Personally Identifiable Information with these websites and services, nor is Quirky responsible for the privacy practices of these websites and services. Quirky makes no representations or warranties concerning such websites and services, nor shall Quirky have any liability concerning such websites and services.
BLOG, FORUMS, CHAT ROOMS AND PARTICIPATE PAGES
The blog, forums, chat rooms and participate pages of the Site are public. The information that you provide in such portions of the Site is publicly available to others, and can be read, collected and/or used by others, potentially outside the Site. Finally, the opinions expressed by each blog, forum, chat room or participate page participant (who is not an employee of Quirky) is his/her own and do not represent the views of Quirky.
The Site is not directed to or intended to be used by children under the age of 18. Quirky does not knowingly collect Personally Identifiable Information from children under the age of 18. If Quirky learns that it has collected Personally Identifiable Information of a child under the age of 18 without parental consent, we will delete that data from our systems and terminate the child's account. If you become aware that a child has provided Quirky with Personally Identifiable Information without parental consent, please contact Quirky at firstname.lastname@example.org.
Dispute Resolution; Governing Law; Venue and Jurisdiction
YOU AND THE COMPANY AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SITE AND/OR THE SERVICES (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICES) SHALL BE FINAL AND BINDING ARBITRATION, except that Quirky may seek injunctive relief in state or federal court located in New York County, New York concerning violation by a User of any of the User conduct rules set forth above, and in such case, the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
The Site and the Services is controlled and operated by Quirky from its offices within the United States of America. The Company makes no representation that any aspect of the Services is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Services from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Services and its use.
The Company's failure to act with respect to a breach by you or others does not waive Quirky's right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Quirky under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Quirky's rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Site and/or the Services in a merger, acquisition or sale of all or substantially all of the Company's assets. You may not assign or transfer this Agreement or any or all of your rights or obligations hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Quirky shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Quirky.
This Agreement sets forth the entire understanding and agreement between you and Quirky with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
Quirky may give notice to you by means of a general notice on the Site, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under this Agreement shall be mailed to us at email@example.com unless otherwise provided in this Agreement.