Background

This contract (the “Contract”) governs all aspects of the relationship between you (the person or entity placing orders through SPOD’s Service) and Spreadshirt Print On Demand GmbH. (“SPOD”), whereby you use SPOD’s Service to place orders with SPOD to print designs on blank textiles and other products (“Products” or "blank Products") at your expense and according to the Fulfillment Information. In this Contract, this arrangement and all associated websites, plugins, applications, and services for placing such orders is described collectively as the “Service.”

You agree to these terms by your express consent during the plugin activation process, or at the latest, you are deemed to have agreed to these terms when you first submit Individual Orders to SPOD.

Agreement

1.   Placing Orders with SPOD

   (a)    Individual Order. An “Individual Order” consists of your request for SPOD to print blank Products according to the Fulfillment Information you provide. This Contract governs all Individual Orders, unless otherwise agreed in writing.

   (b)    Fulfillment Information. You must provide SPOD with all information necessary for the production and delivery of Individual Orders. Together, this is referred to as “Fulfillment Information” and required fields are indicated in SPOD’s Service.

   (c)    Submitting and Canceling Orders. When you submit an order to SPOD through SPOD’s Service, you are making a binding offer for SPOD to fulfill the Individual Order according to the Fulfillment Information and the terms of this Contract. You may not cancel an Individual Order unless the Individual Order has not begun the printing process.

2.   The Service

   (a)    License to the Service. All intellectual property and other rights, title and interest in and to SPOD’s Service are reserved. Your use of the Service does not grant you any right, title or interest to these properties, except as follows: SPOD grants you a limited, revocable license to access and use the Service for its intended purposes as described in this Contract, for as long as this Contract is in effect. To the extent that SPOD makes free fonts and designs available to you, SPOD grants you a royalty-free, limited, revocable license to use such content only in connection with the Service and only for as long as this Contract is in effect.

   (b)    No Ownership. You represent that you will not use SPOD's intellectual property as if it were your own, or in any way which may be confusing, misleading, or deceptive, nor attempt to register such intellectual property in any jurisdiction. You may only use the Service according to SPOD's terms, rules, and guidelines found in this Contract, and SPOD may revoke this license and limit your access to the Service according to this Contract.

   (c)    Your Account Information. If you do not provide complete, accurate, and up-to-date information in your user account, SPOD may suspend or terminate your access to the Service. This includes current, valid payment information, your full name as shown on your income tax return, and any other financial or tax-related information SPOD requests. You are solely liable for the consequences of providing incorrect or out-of-date information.

   (d)    Maintenance. You are solely responsible for securing your login credentials, for covering all costs and aspects of the configuration of your own software and hardware as needed to use the Service, and for adapting to any later changes to the Service.

   (e)    Acceptable Use Rules. You may not:

           (1)     interfere with the Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware;

           (2)     interfere with, or disrupt the access of any user, host or network, including, without limitation, by using a virus; by overloading, flooding, or spamming the Service; or by engaging in any activity that places a disproportionate burden on the Service (including by automated means) compared to ordinary use from a single, ordinary user; or

           (3)     engage in any activity that interferes with another user's ability to use or enjoy the Service.

           (4)     use a robot or other automated means to monitor the activity on or copy information or pages from the Service, except search engines, traffic counters, or similar basic performance monitoring technology;

           (5)     modify, copy, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Service;

           (6)     use any meta tags, search terms, keywords, or similar tags that contain SPOD's name or trademarks;

           (7)     impersonate another person or entity in connection with the Service;

           (8)     assist or encourage any third party in engaging in any activity prohibited by this Contract; or

           (9)     use the Service to promote hate speech, obscenity, or any content that SPOD in its sole discretion finds objectionable. You can review our Content Policy here: https://faq.spod.com/hc/en-us/articles/360007962034-Content-Policy

3.   Usage, Warranties, and Rights to Designs & Fulfillment Information

   (a)    Usage by SPOD. You agree that SPOD or its subcontractors may use the Fulfillment Information to reproduce, create derivative works from, distribute, process, translate, adapt, publish, publicly perform, publicly display, and edit designs; to decorate blank Products; and to process or change any data to ensure conformity with SPOD’s Service and other requirements during the term of this Contract on an irrevocable, non-transferrable, worldwide, fully paid & royalty-free, and non-exclusive basis. This paragraph may not be interpreted to grant SPOD any other ownership rights in the Fulfillment Information that SPOD would not otherwise have.

   (b)    Third Party Intellectual Property Rights.

           (1)     No Violations. You represent to SPOD that you have all rights necessary

                      (A)     to grant the license above in paragraph 3(a),

                      (B)     to place an order for the printing of Products under this Contract,

                     (C)     to offer the Products for sale, and

                     (D)     to display, offer, and sell all content, designs, or other Fulfillment Information relating to the Products, which rights are necessary to avoid any legal complaint by a third party.

For example, these rights can be in trademark, copyright, patent, publicity, personal privacy, and any other applicable usage rights. You further represent that SPOD’s use of the Fulfillment Information will not violate the rights of any third parties or any applicable laws, including without limitation criminal laws, privacy laws, and laws protecting minors. You can review some examples here: https://faq.spod.com/hc/en-us/articles/360007652434-Legal-Guidelines-for-Designs.

           (2)     Due Diligence. You are solely responsible for ensuring the designs and Fulfillment Information you submit are free from any violations of law and infringements of third party rights.

           (3)     Notification. You must promptly notify SPOD if you receive any claim that any Fulfillment Information or Products infringe or violate third party rights. SPOD may also provide such a third party claimant with information relating to the origin, production, sales and distribution, of affected Individual Orders.

4.   Processing Individual Orders

   (a)    SPOD’s Discretion. SPOD may accept or reject Individual Orders in its sole discretion. SPOD anticipates that it will accept most Individual Orders, but you hereby acknowledge that SPOD may reject an Individual Order for any reason or no reason.

   (b)    Intellectual Property Violations. In addition to the general discretion above in Section 4(a), SPOD may reject, cancel, or suspend an Individual Order, or suspend or terminate this Contract immediately without prior notice and without any recourse to you if

           (1)     SPOD receives any notification that any Fulfillment Information violates any law or infringes upon third-party rights;

           (2)     SPOD believes, in its sole discretion, that the Fulfillment Information violates any law or infringes upon third-party rights, or believes, in its sole discretion, that you have violated Section 2(e) (Acceptable Use Rules); or

           (3)     SPOD believes, in its sole discretion, that its continued performance under this Contract poses a legal or other risk (including a public relations risk) for SPOD.

   (c)    Product Availability. SPOD makes a selection of blank Products available to you for the fulfillment of Individual Orders. SPOD cannot guarantee the availability of products at all times and may change the available products at any time and in SPOD’s sole discretion.

   (d)    Subcontractors. SPOD may subcontract any of its duties in this Contract. For example, SPOD may use subcontractors to print the blank Products, and SPOD or its subcontractors have full discretion to select various shipping providers for deliveries.

   (e)    No Customer Service. You are solely responsible for providing your End Customers, if any, with customer service, including coordinating their requests for refunds, returns, and replacements of Individual Orders you originally placed with SPOD. SPOD generally has no direct contact with End Customers. For information about products which are returned to SPOD or otherwise allegedly defective products, see Section 9 (Defects).

5.   Prices

   (a)    Generally. SPOD sets Product prices and displays these in the Service. Shipping costs are shown separately. SPOD may change prices from time to time in its sole discretion, and such changes will be reflected in the Service.

   (b)    Price Reductions for High Volumes. SPOD may, in its sole discretion, make different pricing programs available from time to time (for example, SPOD may offer lower prices to you if you place orders exceeding a certain dollar amount in a given time frame). SPOD does not guarantee the availability of such programs and may suspend or discontinue such programs at any time and without advance notice. Details on such pricing programs can be found on SPOD’s website.

   (c)    Taxes. All prices and costs described in this Contract are net prices and do not include sales taxes, VAT, or other taxes and duties which you may have to pay. You are solely responsible for paying any taxes that apply to the sale, supply, delivery, export and import of the Individual Orders. To the extent SPOD actually pays such costs on your behalf, you may be charged for them.

   (d)    Invoices. You agree to electronic invoicing only. Invoices will be made available in format chosen in the sole discretion of SPOD and downloadable via the Service.

6.   Shipping and Delivery

   (a)    Generally.

           (1)     SPOD or its subcontractors will arrange the delivery of Individual Orders to the delivery address you specify in the Fulfillment Information (usually the delivery address of the End Customer). If you do not provide a delivery address with the Fulfillment Information, then SPOD may refuse delivery, or deliver the Individual Orders to your address on file, in SPOD’s sole discretion.

           (2)     SPOD has the sole discretion to choose the mode of transport, the shipment service provider, and the type of packaging available for Individual Orders. You may select only from the shipping options which SPOD makes available to you when you place your order.

           (3)      You hereby consent to partial deliveries.

   (b)    Costs. You may review shipping costs in the Service. SPOD or its providers may change shipping costs at any time in their sole discretion and without prior notice to you.

   (c)    Risk of Loss, Insurance. The risk of Individual Order loss, destruction, and delay passes to you when the Individual Order is handed over to the shipment service provider, forwarder, carrier, or other person tasked with facilitating shipment. SPOD is not obligated to insure Individual Orders in transit.

   (d)    No Warranties Regarding Delivery Timing. SPOD may provide general estimates of delivery times on its website and in the Service. These are estimates only, and SPOD expressly disclaims all warranties that it will make Individual Orders available to a shipment service provider within any specific time period or that Individual Orders will arrive at any given destination on a specific date.

   (e)    Export Compliance

           (1)     Forms. If your End Customers import Individual Orders to non-United States destinations, SPOD will make commercially reasonable efforts to prepare the necessary documentation when packaging the affected Individual Orders.

           (2)     Costs. To the extent that SPOD incurs costs related to customs clearance (including duties, charges, taxes (e.g., VAT and sales taxes), or other fees), SPOD may charge you for these costs.

           (3)     Destinations and Embargoes. You may review the available delivery destinations in the Service. However, if an Individual Order would be delivered to a destination subject to U.S. sanctions or embargo, or to a Specifically Designated National or Blocked Person under U.S. law, or to any entity, person, or destination that is the subject of a similar restriction, you acknowledge that SPOD is authorized to reject that Individual Order.

7.   Payment

   (a)    Generally. You agree to pay SPOD for all Individual Orders. Payment must be made in the currency (or currencies) selected by SPOD. You acknowledge and agree that the payment of charges shall be collected and processed depending on your location:

           (1)     If you are located outside of the EU or the United Kingdom Britain, Spreadshirt, Inc., 1572 Roseytown Road, Greensburg, PA 15601, United States, +1 (800) 381-0815 (an affiliated company of SPOD) will collect and process payments.

           (2)     If you are located within the EU or the United Kingdom, Spreadshirt Print On Demand GmbH, Gießerstr. 27, 04229 Leipzig, Germany, +49341594005900 will collect and process payments.

   (b)    Payment Methods. You must provide payment information before you place Individual Orders. SPOD may make various methods of payment available from time to time (for example, you may provide SPOD with your credit card information), and you may review the available methods in the Service. If your chosen payment method results in additional charges to you (for example from your banking institution), these charges are your sole responsibility.

   (c)    Payment Failure. If there is a chargeback on your order, or if your payment method fails for any reason,

           (1)     SPOD is immediately excused from all duties under this Contract and under the Individual Orders, without prior notice to you, until you correct the error and process any overdue payment(s); and

           (2)     you agree to pay any and all associated costs caused by the chargeback or your payment failure, including processing fees, costs of collection, and reasonable attorney’s fees, if applicable. In addition to the foregoing, you agree to pay a flat $20 fee to compensate SPOD for each chargeback.

8.   Data Protection

   (a)    SPOD will collect, process, and use End Customers’ personal data only in so far as is necessary to perform its duties under this Contract. End Customer personal data will be destroyed at your request, as long SPOD is not subject to legal requirements to store the data in question. More information can be found in SPOD’s privacy policy which is available at SPOD’s website.

   (b)    You guarantee to SPOD that any of the End Customers’ personal data that you have collected has been collected in accordance with all applicable legal requirements (E.g., the CAN-SPAM Act, COPPA, GDPR, etc.) and you expressly warrant that SPOD may use all such information to perform its duties under this Contract without violating any laws. You guarantee that you have obtained End Customer consent for information collection and processing in all circumstances required by applicable law.

9.   Defects

   (a)    Included in “Defects”. SPOD will not grant a refund, credit your account, or replace a Printed Product unless the Printed Product

• was misprinted;

• was damaged (other than during delivery); or

• does not match the Fulfillment Information (e.g., the printed image is incorrect or placed incorrectly; the product is the wrong size, color, or type).

SPOD has the sole discretion to grant a refund (including the refund method), credit your account, or replace a Printed Product. In order to request a refund, credit, or replacement, you must send a photograph and brief explanation of the problem to SPOD via email at service@spod.com within 30 days of delivery.

   (b)    Excluded from “Defects”. For clarification, SPOD will not grant a refund, credit your account, or replace a Printed Product solely because

• it was unsatisfactory for any reason despite matching the provided Fulfillment Information; or

• the shipping provider did not complete delivery, or completed delivery late.

In such cases, you must place a new order, or the recipient of the Individual Order must attempt to resolve the delivery dispute with the shipping provider.

10.   Indemnification

   (a)    Generally. You agree to indemnify, defend, release, and hold SPOD and its affiliates, employees, officers, agents, and subcontractors harmless, without limitation, from any liabilities and costs (including reasonable attorney’s fees) resulting from any claims that arise out of or relate to

           (1)     Your breach of any term, representation, or warranty of this Contract, including for example Section 2(e) (Acceptable Use Rules) and Section 3 (Usage, Warranties, and Rights to Designs & Fulfillment Information);

           (2)     Liability for taxes, including sales, use, value added, manufacturing, processing, excise or other similar taxes or (import) duties; and

           (3)     the violation of any law, in so far as such claims relate to your Individual Orders or other acts relating to this Contract.

   (b)    Management of Defense. SPOD reserves the right to manage its defense of an indemnified claim in its sole discretion, including the selection of its own counsel. You agree to cooperate fully with us in the defense of any claims described in this Section.

11.   Disclaimer of Warranties and Limitation of Liability

   (a)    Disclaimer of Warranties.

           (1)     As-Is. With respect to this Service, SPOD hereby disclaims any and all express or implied warranties, including warranties of fitness for a particular purpose, merchantability, and non-infringement to the fullest extent of the law, except to the extent that this Contract provides otherwise. SPOD is also not responsible for express warranties made by the manufacturer(s) of blank Products or other third parties (e.g., in their advertisements). SPOD provides the service on an "as-is" and "as available" basis. SPOD does not represent or warrant that the Service or its use:

                      (A)     will be uninterrupted, timely, safe, or secure,

                      (B)     will be free of inaccuracies, errors, or vulnerabilities,

                     (C)     will meet your expectations or requirements, or

                     (D)     will operate in the configuration or with the hardware or software you use.

           (2)     Assumption of Risk. You agree that SPOD has no responsibility for any damages suffered by you in connection with the Service, and that use of the Service, including all content, data or software distributed by, downloaded, or accessed from or through the Service, is at your sole risk. You understand and agree that you will be solely responsible for any damage to your business or your computer system or any loss of data that results from your actions and your use of the Service. SPOD does not control or endorse in any respect any information, products, or services offered by third parties through the Service, and is not responsible for any possible representations and warranties these third parties may make.

   (b)    Limitation of Liability. You release SPOD and its affiliates, representatives, subcontractors, employees, agents, directors, and officers from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against SPOD or any related third parties. SPOD is not liable to you for any lost profits or other consequential, special, indirect, or incidental damages arising out of or relating to the Service, this Contract, or any other agreement or conduct involving you and SPOD, regardless of the cause of action (whether in contract, tort, strict product liability, or otherwise), even if advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability described in this Section. In such cases, SPOD's liability will be limited to the fullest extent permitted by applicable law.

           (1)     California Civil Code §1542. If you are a California resident, you waive California Civil Code §1542, which says in full: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

12.   Term and Termination

   (a)    Generally. This Contract has an indefinite term. The Parties may terminate this Contract for any reason or no reason by providing written notice of termination (including via email), which termination becomes effective immediately upon notification. You may also terminate this Contract effective immediately by permanently ending your use of the Service (e.g., by deleting your account or uninstalling all applicable SPOD applications or plugins). Termination of this Contract does not affect the Individual Orders placed before termination.

   (b)    Termination For Cause. SPOD may terminate this Contract without any prior notice if you violate Section 2(e) (Acceptable Use Rules), Section 3 (Usage, Warranties, and Rights to Designs & Fulfillment Information), if you materially breach any other agreement (or surviving duty of an expired agreement) to which you and SPOD are parties, if you become insolvent or cease to do business in the ordinary course, or if you engage in any illegal, unfair, or deceptive business practices or unethical conduct whatsoever (in SPOD’s sole discretion). If SPOD terminates this Contract pursuant to this paragraph, you waive all rights, including injunctive relief, to contest SPOD’s determination that a termination event has occurred.

   (c)    Survival. Notwithstanding the above, Sections 2(b) and 2(e) (The Service), Section 3 (Usage, Warranties, and Rights to Designs & Fulfillment Information), Section 5(c) (Taxes), Section 6(c) (Risk of Loss), Section 7 (Payment; especially for orders placed before termination), Section 10 (Indemnification), Section 11 (Disclaimer of Warranties and Limitation of Liability), and Section 13 (Miscellaneous) survive the termination of this Contract.

13.   Miscellaneous

   (a)    Entire Agreement. This Contract contains the entire agreement between the parties and replaces all prior oral and written agreements regarding its subject matter. The parties have not relied on any representations or promises relating to the subject matter of this Contract except those contained within the four corners of this Contract.

   (b)    Amendment. No oral modifications, express or implied, may change the terms of this Contract. SPOD may amend this Contract by providing written notice of such amendment to you at least 14 calendar days in advance of its effectiveness; if you reject the amendment, your sole remedy is to terminate this Contract by ending your use of the Service.

   (c)    Waiver. Waivers are only effective when in writing. If a party waives enforcement of a breach of any term of this Contract, later breaches of the same or other terms are not waived. Accepting late performance of any act or late fulfillment of any condition of this Contract is not a waiver of the act or condition itself.

   (d)    Choice of Law, Disputes. The formation, construction, and performance of this Contract must be construed in accordance with the laws of Massachusetts without regard to its choice of law rules, and without regard to the United Nations Convention on Contracts for the International Sale of Goods of Vienna 1980. If any dispute arises between the parties or out of this Contract, you agree to exclusive personal jurisdiction and venue in the state or federal courts of Massachusetts; if you file any claims in other venues in contravention of this paragraph, or dispute personal jurisdiction in contravention of this paragraph, you agree that these filings or arguments must be dismissed immediately and you must reimburse SPOD for all of its costs and reasonable attorney’s fees relating to such filing(s) or argument(s).

   (e)    Fees and Costs. At the conclusion of any litigation or alternative dispute resolution process arising out of or relating to this Contract, the losing party must reimburse the prevailing party for its costs and reasonable attorney’s fees.

    (f)    Notice. To give notice pursuant to this Contract, a Party must send written notice to the other Party at the email address provided in the Service. Notices to SPOD must be sent to support@spod.com. Unless otherwise specified, notice is deemed to be received at the end of the next full business day (meaning 9:00 am to 5:00 pm in the time zone of the recipient) after it is sent by electronic mail.

   (g)    No Third-Party Beneficiaries. This Contract does not and is not intended to confer any rights or remedies upon any person other than the parties.

   (h)    Interpretation Rules.

           (1)     “Or” when used in a group phrases or nouns intends to include any combination of all or any of the items in the group, and not merely one member or the other of such a group.

           (2)     When "includes" or “including” begins a list of items, the list is not exclusive.

           (3)     All headings used in this Contract are for convenience only, and are not to be taken into account when interpreting the meaning of any term of this Contract.

           (4)     “the parties” refers to you and SPOD jointly.

    (i)    Non-Business Day Grace. If this Contract sets a deadline or requires action on a day that is not a regular business day in United States of America or the state of Massachusetts, the deadline or required date of action will be moved to the next regular business day.

    (j)    Independent Contractor Relationship.

           (1)     SPOD and You. This Contract does not constitute a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party nor its agents have any authority to bind the other party, and the relationship of the parties is that of independent contractors.

           (2)     You and Others. The contractual relationship between you and SPOD exists independently of any contractual relationships you may have with End Customers. The End Customer remains your customer only. Possible risks arising out of the relationship between you and End Customers rest solely with you. For example, you are solely responsible for any VAT and sales taxes that apply to your sales to your own End Customers, if applicable.  

   (k)    Succession and Assignment. This Contract inures to the benefit of and binds the successors, assigns, heirs, executors and administrators of the parties, for example, in connection with a merger, acquisition, consolidation, change of control, or purchase of all or substantially all of your assets or business. However, you may not assign or delegate any right or duty under this Contract without written consent from SPOD. Any attempt to do so is null and void.

    (l)    Severability. If any provision of this Contract or an Individual Order is held invalid or unenforceable, the remainder of this Contract or the Individual Order will remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it will remain in full force and effect in all other circumstances.

  (m)    Shopify Specific Terms. The following terms apply to this Contract only if you use the Service in connection with Shopify (see https://www.shopify.com/):

           (1)     Shopify Termination. Note that Shopify may terminate SPOD's access to Shopify at any time, for any reason or no reason. If this occurs, this will result in SPOD's Service being unavailable without any prior notice.  

           (2)     Limitation of Liability for Shopify. SPOD is solely responsible for its Service. Shopify is not liable for any fault in the Service or any harm that may result from its installation or use. Except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the Service. Shopify is not responsible for any liability which may arise from: (i) the development, use, marketing or distribution of or access to the Service, including support of the Service; and (ii) SPOD's access, use, distribution or storage of Merchant Data.