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Terms of Service

TERMS OF USE

Effective date: April 26th, 2021

Please read carefully before using the services offered by ES9GIFTS.

ES9GIFTS provides users with an automated Internet-based service to design and sell t-shirts and other custom products. By using ES9GIFTS and its services in any capacity, you have agreed to the terms and conditions of this Agreement and agree to use the site and service solely as provided in this Agreement. For additional clarification on these Terms of Use, please refer to ES9GIFTS’s Frequently Asked Questions section.



USER AGREEMENT

By violating this User Agreement in any capacity, you are subject to an immediate removal of your campaign(s), possible forfeit of profit(s), and potential suspension or termination of your account.

ES9GIFTS provides its website and related services to you (“Seller” or “you”) subject to this User Agreement (the “Agreement”), the Intellectual Property Complaint Policy (“DMCA”), the Counter-Notice Policy, the Repeat Intellectual Property Complaint Policy, the Refund Policy, and the Privacy Policy (this Agreement and the foregoing policies collectively referred to as “Terms of Use”). All of the terms and obligations set forth in the foregoing policies are incorporated by reference.

Delivery Procedure

Any time quoted for delivery is an estimate only; provided, however, that ES9GIFTS shall use commercially reasonable efforts to deliver all merchandise on or before the stated delivery date. No delay in shipment or delivery of any merchandise relieves Seller of their obligations under this Agreement.

Print Variance

Product production is generated from the artwork uploaded by the seller. The estimated positioning of the art work is provided by the seller. Print size and exact location may vary based on the product size. Colors are best matched to the artwork provided. ES9GIFTS may substitute comparable products if stock becomes an issue. Exact print size, location, and colors are not guaranteed; and are completely dependent on the artwork uploaded by the seller.

Price and Payment

Seller shall determine the price of the merchandise sold for each campaign, ES9GIFTS shall retain from the customer payments, ES9GIFTS will determine the base price as the cost of goods sold (including any additional expenses and fees ES9GIFTS determines necessary to comply with the terms of this Agreement), and remit to Seller any amount in excess of such base price (“Seller Profits”).



BY CREATING A CAMPAIGN ON THE ES9GIFTS SITE:

You agree to accept and abide by ES9GIFTS’s Terms of Use in their entirety.

With respect to any trademarks, service marks, or copyrights that you have licensed from the owner thereof (the “Licensed Rights”), you agree to comply with any restrictions or conditions imposed on the use of the Licensed Rights.

You agree that you are the owner, or licensee, of all rights associated with any created or uploaded artwork or text, including but not limited to, the trademarks and copyrights that may be associated with said material. If you are not the owner, you agree to provide ES9GIFTS with evidence of the permission given to you by the owner.

You agree that the description and title of the campaign do not, either in and of themselves or in addition to the text and images featured in the created merchandise, infringe upon the rights of any third party.

You understand and agree that ES9GIFTS reserves the right to remove any content that may be considered to promote hate, violence, racial intolerance, or the financial exploitation of a crime.

You understand and agree that ES9GIFTS may, in its sole discretion, release your contact information to a third party that satisfactorily alleges, pursuant to ES9GIFTS’s Intellectual Property Complaint Policy below, unauthorized use of its intellectual property.

Upon receipt by ES9GIFTS of an allegation of infringement that comports with ES9GIFTS’s Intellectual Property Complaint Policy, in ES9GIFTS’s sole discretion, your campaign may be subject to immediate cancellation, possible forfeiture of any profits, and suspension or termination of your account with ES9GIFTS.

You agree not to provide untrue information in your campaign including, but not limited to: the amount of product for sale, the origin of production of the product, or the intended recipient of profits.

You agree not to utilize illegal advertising to run your campaign, including but not limited to: advertising frauds, payment fraud on advertising accounts. Upon receipt by ES9GIFTS of an allegation or suspicion of illegal advertising, your account may be subject to immediate termination.

You agree not to solicit potential buyers through information posted in your campaign other than the purchase of the primary item(s). This includes raffles, chances to win, and other representations of additional opportunities beyond the sale of the primary item being sold.

You agree to defend, indemnify, and hold ES9GIFTS and its affiliates harmless from and against any and all claims, damages, costs, and expenses, including attorneys' fees, arising from or relating to your use of ES9GIFTS’s site and services, your violation of this Agreement, or your violation of any rights of another.

You agree that ES9GIFTS is not responsible for any consequential, indirect, or any special damages, including, but not limited to, lost profits, associated with any action taken by ES9GIFTS pursuant to this Agreement or your use of the ES9GIFTS service.



INTELLECTUAL PROPERTY COMPLAINT POLICY

ES9GIFTS keeps the rights to sweep any infringement contents related to (but not limit) trade mark, copyrights and other content violations. All the content uploaded by user should go through our review process with 2 steps as below:

  1. At the first round, our platform will do a check by our bot. Our bot will automatically crawl all the user generated contents and match it with Google Vision library. If it found any content violation, the platform will flag the campaign immediately.
  2. Some tricky designs should be able to pass the bot. We have our second round of reviewing by humans to make sure we can catch those content.

ES9GIFTS provides users with a platform to sell their own merchandise. Users contractually agree to all terms prior to use of ES9GIFTS services. ES9GIFTS contractually prohibits users from using its services to sell merchandise that infringes upon third party intellectual property rights (such as copyright, trademark, trade dress, and right of publicity).

It is ES9GIFTS policy to block and remove any content that it believes in good faith to infringe the intellectual property rights of third parties following receipt of a compliant notice; and to terminate service for repeated infringement.

If you believe that your intellectual property rights have been infringed upon by a ES9GIFTS user, please notify ES9GIFTS at [email protected]. You must include within your notification the following information:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property that you allege is being infringed
  2. The URL to the ES9GIFTS campaign(s) used in connection with the sale of the allegedly infringing merchandise.
  3. Identification of the copyright, trademark, or other rights that allegedly have been infringed, including proof of ownership (such as copies of existing trademark or copyright registrations).
  4. Your full name, address, telephone number(s), and email address(es).
  5. A statement that you have a good-faith belief that use of the material in the URL submitted is unauthorized by the rights owner, or its licensee, and such use amounts to infringement under federal or state law.
  6. A statement, under penalty of perjury, that the information in the notification is complete and accurate and that you are authorized to act on behalf of the owner of the intellectual property or other right that is allegedly infringed.

COUNTER-NOTICE POLICY

If you believe that a claim of intellectual property infringement was filed by mistake or misidentification you may file a counter-notice. If you materially misrepresent in your counter-notice that your design is not infringing upon the intellectual property, you may be liable for damages to the intellectual property owner (including costs and attorney’s fees). Therefore, if you are unsure whether or not the material infringes on the intellectual property, please contact an attorney before filing the counter-notice. The counter-notice should be submitted to [email protected] and must include the following information:

  1. Your physical or electronic signature;
  2. Your full name, address, telephone number(s), and email address(es);
  3. Identification of the material and its location before it was removed, either by URL to the ES9GIFTS campaign(s) used in connection with the sale of the allegedly infringing merchandise or ES9GIFTS campaign number;
  4. A statement under penalty of perjury that the claim of intellectual property infringement that led to the removal or blockage of access to material was filed by mistake or misidentification;
  5. Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the U.S.);
  6. Your consent to accept service of process from the party who submitted the takedown notice or an agent of that party.

If you submit a counter-notice, a copy of the counter-notice may be sent to the complaining party informing the complaining party that ES9GIFTS may replace the removed material or cease disabling it in 10 business days. Unless the intellectual property owner files an action seeking a court order against you, the removed material may be replaced or access to it restored in 10 to 14 business days after receipt of the counter-notice.



REPEAT INTELLECTUAL PROPERTY COMPLAINT POLICY

If ES9GIFTS receives repeated notices that you have posted others’ intellectual property without permission, ES9GIFTS may terminate your account. ES9GIFTS has a system for keeping track of repeat violators of intellectual property rights of others, and determining when to suspend or terminate your account.

ES9GIFTS reserves the right to terminate accounts that act against the spirit of the Terms of Use, regardless of how many strikes are involved.



WITHHOLDING AND TAX MATTERS

It is contemplated that the services and transactions described in this Agreement will not impose a withholding obligation upon ES9GIFTS under Section 1442 of the Internal Revenue Code, as amended (the “Code”). Notwithstanding the foregoing, in the event ES9GIFTS concludes that it has an obligation to withhold under Section 1442 of the Code (or other applicable law) with respect to Seller Profits, ES9GIFTS will withhold all applicable income tax from any payments or Seller Profits otherwise due to Seller.

Seller shall be solely responsible for payment of its own tax liabilities which may arise under the Agreement, and shall indemnify ES9GIFTS for any tax obligations, including for federal income tax withholding, which may arise as a result of this Agreement.



INDEMNIFICATION

Seller shall indemnify, defend and hold harmless ES9GIFTS and ES9GIFTS’s affiliates, employees, officers, directors, and agents from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, costs and expenses (including attorneys’ fees) which arise out of or relate to (i) any content submitted or posted by Seller, (ii) Seller’s use of, or connection with, ES9GIFTS’s website, (iii) Seller’s violation of any of the terms of this Agreement or the Terms of Use, or (iv) Seller’s violation of any rights of a third party. To secure Seller’s prompt and complete payment and performance of any and all present and future indebtedness, obligations and liabilities of Seller to ES9GIFTS including with respect to any indemnification arising out of the Agreement or the Terms of Use, Seller hereby grants ES9GIFTS a security interest in all proceeds of the merchandise (including Seller Profits and insurance proceeds). ES9GIFTS shall be entitled to all applicable rights and remedies of a secured party under applicable law.

IN NO EVENT SHALL ES9GIFTS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE Terms of Use, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT OTHERWISE OWED TO SELLER AS SELLER PROFIT.

Disclaimer of Warranties

YOUR USE OF THE ES9GIFTS SERVICE IS AT YOUR SOLE RISK. THE ES9GIFTS SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING A BUYER’S RIGHT TO RETURN MERCHANDISE AND OBTAIN A REFUND TO THE EXTENT DESCRIBED IN OUR RETURN POLICY, ES9GIFTS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO ANY CAMPAIGN, MERCHANDISE OR SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

Limitation of Liability

ES9GIFTS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ES9GIFTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY MERCHANDISE, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL ES9GIFTS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID ES9GIFTS OR ES9GIFTS HAS PAID YOU IN THE LAST SIX (6) MONTHS, OR, IF GREATER, FIFTY DOLLARS ($50). THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

Exploiting system vulnerabilities

ES9GIFTS preserves the right to deal with individuals and organizations that intentionally exploit system vulnerabilities in order to usurp benefits. Individuals and organizations who have intentionally exploited the system vulnerabilities of ES9GIFTS are obligated to recover the damage caused. Damage includes, but is not limited to, the categories listed below

  • Loss of money and other benefits
  • System interruption
  • The damage caused by ddos and other forms of attack

MISCELLANEOUS PROVISIONS

Terms of Agreement Prevail Over Seller’s Campaign Purchase Order

The parties intend for the express terms and conditions contained in this Agreement (including any schedules and exhibits hereto), and the pricing terms as set forth for each campaign, to exclusively govern and control each of the parties’ respective rights and obligations regarding the subject matter of this Agreement, and this Agreement is expressly limited to such terms and conditions. Any attempt to modify, supersede, supplement or otherwise alter this Agreement, will not modify this Agreement or be binding on the parties unless such terms have been fully approved in a signed writing by both parties.

Relationship of the Parties

Nothing in this Agreement or the Terms of Use creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.

Entire Agreement

This Agreement (and the Terms of Use) constitute the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

Assignment

Seller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ES9GIFTS. ES9GIFTS may assign any of its rights or delegate any of its obligations hereunder in ES9GIFTS’s sole discretion.

Severability

If any term or provision of this Agreement (or the Terms of Use) is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement (or the Terms of Use) or invalidate or render unenforceable such term or provision in any other jurisdiction.

Governing Law; Venue

This Agreement and the Terms of Use shall be governed by the laws of the State of Florida, without giving effect to the principles of conflicts of laws. Each party consents to the personal jurisdiction of the Federal, state, or local county courts located in Hillsborough County, Florida. Each party agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent to the address set forth above and/or by any means authorized by law.

Waiver of Jury Trial

Each party waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the Terms of Use.



BUYER PAYMENTS, RETURNS, REFUNDS, AND CANCELLATION POLICY

By clicking 'Place Your Order' you ("Buyer" or "You") agree that you have read and understood all terms and policies that apply to you in this document.

Payment methods

We accept payment including VISA, MASTER, AMERICAN EXPRESS and Paypal. Other types of payments will not be accepted.

Time of payment

Due to the extensive amount of work required prior to the printing and shipping of your order (e.g., User Content preparation), Buyers will be charged at the time their order is placed.

If you purchase any merchandise through the ES9GIFTS Service, you will be required to provide ES9GIFTS information regarding your credit card or other payment instrument. You represent and warrant to ES9GIFTS that such information is true and that you are authorized to use the payment instrument.

Time of Shipment

For all Products except apparel, we will print your Product shortly after the completion of your order and ship the Product in due course. For Products that are apparel (e.g., t-shirts), all Products of the same type will be printed and shipped. Customer(s) can expect to receive their products 14-21 business days after their payment has been received and their order processed. Customer(s) acknowledges and agrees that the stated delivery time frame of 14-21 business days is an estimate, and under certain instances (such as delays caused by the postal service, delays due to weather events or natural disasters) deliveries may exceed the stated time frame.

International: Certain countries do not provide international tracking once the shipment has left the country that our store located. If Seller experiences a lost or delayed shipment, Seller should ask the 3rd Party Customer to reach out to their local post office to inquire about which carrier UPS connects to in their country. ES9GIFTS is not responsible for providing a list of the aforementioned countries nor contacting the third-party carrier on the Seller’s or 3rd Party Customer's behalf.

Lost or Stolen Shipments

ES9GIFTS does not guarantee domestic and/or international shipments nor handle returns or exchanges. Certain countries are considered "high risk" for issues such as lost or stolen and/or lost-in-transit shipments. Shipping ES9GIFTS products domestically & internationally are at the sole risk of the Seller. ES9GIFTS is not liable for shipments that do not deliver successfully.

Cancellations, Refunds, & Exchanges

Due to the customized characteristics of Products, we do not allow cancellations, exchanges, or refunds. If upon delivery of the product you feel that your order was incorrect due to error on our part, such as the wrong color, item size, or design, please email us within fourteen days of your delivery. Claims will be handled on a case basis. You acknowledge and agree that goods produced by us for you are bespoke, custom-made goods. Other than where goods are faulty, you have no right to cancel any order or return any goods and all orders are final.



API POLICY

OVERVIEW

All material on any ES9GIFTS API Applications is the property of ES9GIFTS. All rights reserved. The information and images presented may not under any circumstances be reproduced or used without prior written permission. Sellers may not use language that is threatening, abusive, vulgar, discourteous or criminal. Sellers also may not post or transmit information or materials that would violate the rights of any third party or which contains a virus or other harmful component. ES9GIFTS reserves the right to remove or edit any messages or material submitted by Sellers.

ES9GIFTS integrates all information, tools, and services through 3rd Party Platforms (i.e. Shopify) to benefit the Seller upon acceptance of all terms, conditions, policies, and notices herein. By accessing or using any part of the ES9GIFTS application and/or purchasing merchandise through ES9GIFTS, the Seller engages in ES9GIFTS service and agrees to be bound by the following Terms of Use. All of the terms and obligations set forth in the foregoing policies are incorporated by reference. These Terms of Use apply to all Sellers of the ES9GIFTS application, including without limitation: Users who are browsers, ES9GIFTS, customers, Sellers, and/or contributors of content.

If Seller does not agree to all terms and conditions of this agreement, Seller may not access the application and website, or utilize any ES9GIFTS services.

Any and all new ES9GIFTS application features and/or tools added are subject to the current Terms of Use. The most current version of the Terms of Use is available at any time on this page. ES9GIFTS reserves the right to update, change or replace any part or part(s) of these Terms of Use by posting updates and/or changes to the company website. ES9GIFTS is not responsible for directly updating any Seller, or “3rd Party Customer” (or “Buyer”), of aforementioned updates. Continued use of, or access to, the ES9GIFTS Application following the posting of any service modifications constitutes acceptance of any updates to the Terms of Use. ES9GIFTS does not handle and is not responsible for any Seller services including payment processing, returns, refunds, or exchanges. ES9GIFTS is not responsible for Sellers customer service. This agreement is effective until terminated by either party. Seller may terminate this agreement at any time by discontinuing his/her use of the ES9GIFTS Application and destroying all materials obtained from it.



LOST / STOLEN

ES9GIFTS does not guarantee domestic and/or international shipments nor handle returns or exchanges. Certain countries are considered "high risk" for issues such as lost or stolen and/or lost-in-transit shipments. Shipping ES9GIFTS products domestically & internationally are at the sole risk of the Seller. ES9GIFTS is not liable for shipments that do not deliver successfully.

International: Certain countries do not provide international tracking once the shipment has left the country that our store located. If Seller experiences a lost or delayed shipment, Seller should ask the 3rd Party Customer to reach out to their local post office to inquire about which carrier UPS connects to in their country. ES9GIFTS is not responsible for providing a list of the aforementioned countries nor contacting the third-party carrier on the Seller’s or 3rd Party Customer's behalf.



PRINTING & PRODUCTION

ES9GIFTS prohibits Sellers from using the service to sell merchandise that infringes upon third party intellectual property rights (such as copyright, trademark, trade dress, and right of publicity). Merchandise production is generated from the artwork and mock-up provided by the Seller (3rd Party Platform seller). Print size may vary based on the individual product size. Colors are best matched to the artwork, and ES9GIFTS may substitute comparable products if stock becomes an issue. Exact print size, location, and colors are not guaranteed. Seller is responsible for checking his/her "Action Required” tab within 3rd Party Platform and it is Seller’s responsibility to take manual action if there is an address or payment issue. It is the sole responsibility of the Seller to rectify the issue manually before ES9GIFTS can continue with production. ES9GIFTS is not responsible for orders that are not processed due to these aforementioned issues.

These Services are operated and provided by ES9GIFTS. If you have any questions about these Terms, please contact ES9GIFTS at es9giftsstorehelp.net@.