Terms of Sale
If you are entering into these Terms of Sale on behalf of a company or other legal entity, you represent that you have the authority to bind such entity, its affiliates and all users who access the Service through your account to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity, its affiliates and users associated with it. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept these Terms of Sale and may not use the Service.
Graffletopia reserves the right to update and change the Terms of Sale from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Sale. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Sale at any time at: www.graffletopia.com/terms_of_sale.
Violation of any of the terms below, in Graffletopia’s sole discretion, will result in the termination of your Account. While Graffletopia prohibits certain conduct and content on the Service, you understand and agree that Graffletopia cannot be responsible for the content posted on the Service and you nonetheless may be exposed to such materials.
You agree to use the Service at your own risk.
- “Action” shall mean any claim, action, cause of action or suit (in contract, tort or otherwise), inquiry, proceeding or investigation by or before any governmental authority.
- “Business” shall mean the collective business of a Party as such business is currently conducted.
- “Charter” shall mean the certificate or articles of incorporation or organization or other charter documents, certificate of limited partnership or other organizational documents, including trust documents, of any Person (other than an individual), each as from time to time in effect.
- “Material Adverse Effect” shall mean any change in or effect on the business of a Party which has, or would have a material adverse effect on the Business, assets and financial condition of a Party taken as a whole except to the extent that any such change in or effect on the business results from the announcement or consummation of the transactions contemplated thereby.
- Either Graffletopia or you may be referred to from time to time herein as a “Party,” or, collectively, as the “Parties.”
- “Person” shall mean any individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, or other entity other than any governmental authority.
- The “Service” or “Services” refers to the services offered at any time through the website Graffletopia.com.
Preparing Stencils for Sale
- To sell a stencil, you must first upload your stencil to Graffletopia using the Share a Stencil form (www.graffletopia.com/share). When uploading your stencil, you agree to follow the existing stencil sharing guidelines on the Share a Stencil page (which specify how your stencil should be compressed, named, etc.) You also agree to review and follow the Guidelines for Designing Paid Stencils at www.graffletopia.com/guidelines.
- To designate a stencil as available for sale, you must notify Graffletopia after uploading your stencil that you wish to sell the stencil by emailing . Your email should also include the recommended price for your stencil.
- You agree to give Graffletopia final say over the presentation of your stencil, including the description and any preview image. Graffletopia also reserves the right to not sell your stencil until Graffletopia is satisfied that your stencil is ready for sale.
Establishing a Price for Stencils
- To set the final price for your stencil, you agree to discuss pricing with Graffletopia to establish a fair and reasonable price for your stencil. While Graffletopia reserves the right to suggest various pricing options to you, Graffletopia agrees that you, as the stencil designer, have the final say on the base price of your stencil.
- You agree to allow Graffletopia to reduce the price of your stencil during periodic limited sales events and to set the reduced price for your stencil during the sales event without your notice, input, or permission. Graffletopia agrees to return your stencil to its regular price at the conclusion of the sales event. The timing and details of the sales events will be at the sole discretion of Graffletopia.
- Graffletopia reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Graffletopia shall not be liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service.
Distribution of Profits
- Graffletopia agrees to pay you 70% of any revenue received by Graffletopia from the sale of your stencils. Graffletopia will retain the balance as our fee for our services. By using the Services, you hereby agree that these terms are fair and reasonable.
- These payouts will be distributed to you by Graffletopia by a company check or via PayPal, depending on your preference. Checks will be mailed to you at the address on record on your Graffletopia account as of the date of mailing.
- Payouts will be distributed on a monthly basis. At the beginning of each month, Graffletopia will calculate your total sales for the previous month (excluding any refunded purchases) and then issue a payout to you within 31 days of the end of the previous month. For example, if Graffletopia sells $100 of your stencils during April 2015, you will receive a payout for $70 no later than May 31, 2015.
- You agree to notify Graffletopia immediately if your mailing address or PayPal email address has changed so that Graffletopia can update its payout records and send your payout to the correct address.
- By uploading a Stencil or any other content to the Service, you are warranting that you are the rightful owner of any copyright, trademark, patent, or any other intellectual property rights embodied in the Stencil or other content. Under no circumstances may you upload any Stencils or other content for which you do not enjoy clear and unambiguous intellectual property rights or that violates any law or infringes the rights of any third party.
- You shall defend Graffletopia against any claim, demand, suit or proceeding made or brought against Graffletopia by a third party alleging that your content, or your use of the Service in violation of these Terms of Sale, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Graffletopia for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Graffletopia in connection with any such claim, demand, suit or proceeding; provided, that Graffletopia (a) promptly gives you written notice of the claim, demand, suit or proceeding; (b) gives you sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that you may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Graffletopia of all liability); and (c) provides to you all reasonable assistance, at your expense.
Term and Termination
These Terms of Sale shall apply beginning on the date and time you being using the Service and shall terminate at the earlier of: (a) when Graffletopia elects to terminate these Terms of Sale for any reason; or (b) when you remove all of your stencils for sale from the Graffletopia online store.
- Dispute Resolution. Any controversy, transaction, or dispute arising out of or relating to these Terms of Sale shall be settled in the following order of preference: (1) By good faith negotiation between representatives of the Parties who have authority to fully and finally resolve the dispute; (2) if necessary, by non-binding mediation at a location acceptable to both Parties in Los Angeles County, California using a neutral mediator. In any mediation, the Parties shall equally share the cost of the mediator and otherwise bear their own respective costs; or (3) as a last resort only, by binding arbitration in Los Angeles County, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, with the following exceptions if in conflict: (a) one arbitrator shall be chosen by the American Arbitration Association; (b) each Party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any Party if written notice (pursuant to the Arbitrator's rules and regulations) of the proceeding has been given to such Party. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, transactions or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either Party and shall not have the power to amend these Terms of Sale. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF SALE OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- Governing Law; Consent to Jurisdiction. These Terms of Sale and all rights and remedies thereunder shall be governed by and construed under the laws of the State of California except with regard to its provisions concerning choice of law and conflicts of law.
- Assignment. Graffletopia may assign, delegate, sub-contract, or otherwise transfer these Terms of Sale or any of its rights and obligations hereunder, whether voluntarily, by operation of law or otherwise, without your prior written approval.
- Notices. All notices and other communications required or permitted hereunder will be in writing and will be delivered by email. Emails to you will be sent to the email address to which your Graffletopia account is registered. Emails to Graffletopia will be sent to .
- No Exclusivity. Neither Party shall be obligated to offer any business opportunities with the other Party by virtue of these Terms of Sale other than pursuant to the terms described in these Terms of Sale.
- Severability. In the event that any provision of these Terms of Sale is held to be unenforceable by any rule of law, or public policy, all other conditions and provisions of these Terms of Sale shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify these Terms of Sale so as to effect the original intent of the Parties so closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
- Construction. The titles of the sections of these Terms of Sale are for convenience of reference only and are not to be considered in construing these Terms of Sale. Unless the context of these Terms of Sale clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to these Terms of Sale as a whole. Any reference in these Terms of Sale to any statute, rule, regulation or agreement, including these Terms of Sale, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time.
- No Waiver. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of these Terms of Sale. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.
These Terms of Sale were last updated on October 3, 2016.