Terms of Service

 

Last Updated: March 9, 2020

 

DESCRIPTION OF SERVICES.

Please carefully read these terms of service (“Terms”), our copyright and trademark policy (the “Copyright and Trademark Policy”), and our privacy policy (the “Privacy Policy”). Before you may use the Services, you must agree to these Terms and policies. By creating an account, providing artwork, purchasing products, and otherwise using the Services, you agree to all of the terms and conditions in these Terms, the Copyright and Trademark Policy, as well as all other rules, policies and procedures relating to the Services that we may publish from time to time. If you are an artist or a customer who has signed up to receive notifications from us, you will receive a notice whenever we amend or update any of the rules, policies or procedures relating to the Services.

Fluffy Unikorn, LLC will provide to the following services (collectively, the “Services”) to the Recipient:

(“Fluffy Unikorn” or “we” or “us” or “our”) has created and operates an e-commerce platform which brings artists and customers together. We provide a range of services, websites and mobile applications (collectively, the “Services”) which enables artists to earn money from their artwork by making it available for sale to customers on a variety of products, and facilitating the sales by actively engaging in multi-channel marketing and advertising activities .

At Fluffy Unikorn, we appreciate art and creativity in all forms. Our goal is to promote you (‘the Artist’) and to help you maximize your success via the creative product design collaboration. We help you to turn your art into a tangible marketable product and sell it through our channels while giving the biggest share of the profit back to you. We do not believe that true artist should go hungry, we believe in your art and want you to be fairly rewarded for your creativity.

We go beyond simply hosting an online e-commerce platform and allowing you to publish your design hoping it would sell some day. When your artwork is approved for production, our graphic design team is going to work on creating product designs incorporating your art to maximize its appeal and highlight your brand. At the same time our marketing department will be getting busy with planning and executing targeted advertisement campaigns to bring your art to the customers and convert their interest to orders. Our Customer Service department will make sure all orders are delivered on time and to the complete satisfaction of all parties. 

CREATIVE COLLABORATION

The following section is only applicable to you if you have a signed Creative Collaboration agreement with us. The terms and conditions of the actual signed agreement may differ from the general terms listed below.

CREATIVE COLLABORATION SERVICES

The following section is only applicable to you if you have a signed Creative Collaboration agreement with us. The terms and conditions of the actual signed agreement may differ from the general terms listed below.

If we have signed a creative collaboration agreement with you (“the Artist”), we will provide the following services to you (“the Artist”) free of charge:

  • Design products from our catalog using your artwork and publish it in our online store.
  • Generally, we retain the rights to use your artwork in any suitable product design at our own discretion. If you wish to limit the design options to a particular range of products or otherwise specify any particular requirements concerning the use of your artwork, please contact us. 
  • Our product prices are generally based on our market analysis, our experience, our best judgement and other contributing factors. As we want our partnership to be a productive collaboration where you (“the Artist”) have an equal voice, we always welcome your opinion and recognize that you may want to adjust the prices based on your own judgement and experience. Please don’t hesitate to contact us and we will make sure all the necessary adjustments are made to your satisfaction.
  • Carry out multi-channel marketing campaigns and run advertisement to reach relevant audiences and attract engaged traffic to our products. We don’t simply ‘publish-and-forget’.
  • On-demand order fulfillment and shipment
  • Engage in the brand partnership (“co-branding collaboration”) with you (“the Artist”) to promote your brand, increase your customer base, profitability, market share; develop your brand customer loyalty, brand image, and perceived value.

PAYMENTS

We believe in fair and equal partnership, and we also want to show you a little bit more appreciation for your creativity.
Unless otherwise stated or agreed upon in writing, for every product that is sold with your artwork incorporated in it, we will pay you (“Artist Share”) of 60% of the net profit from the sale of all the products with your artwork incorporated in it, across all of our marketing channels. All amounts will be paid in U.S. Dollars. You are responsible for paying all applicable taxes associated with your receipt of Artist Share.
Artist earnings are paid via PayPal (between the first and third business day of each month) and credited no later than 30 days after the shipment of each order.
For sales of products on our websites, you will be paid on a monthly basis. For sales of products through our third-party affiliates, wholesale partners or third party retailers, you will be paid within thirty (30) days of the end of each calendar quarter.

 

ARTWORK AND THIRD-PARTY RIGHTS

As between you and Fluffy Unikorn, you own all and retain all rights in your artwork and content. You hereby grant us, our international websites, third party affiliates, wholesale partners, and our third party retailers a worldwide, royalty-free, nonexclusive, assignable license, with right of sub-license, to use, publicly display and publicly perform, publish, reproduce, modify, and distribute your artwork and content in any format or medium now known or later developed for the purpose of promoting your artwork and content, producing and promoting products with your artwork and content, and providing the Services. 

By providing us the artwork, you represent and warrant that:

  1. you own all intellectual property rights in your artwork or that you have obtained all copyrights, trademark rights, rights of publicity and other rights required for you to make your artwork and content available through the Services, to manufacture, distribute and sell products that include your artwork and to grant us the rights granted to it in these Agreement;
  2. your artwork and the manufacture, distribution and sale of products that include your artwork does not and will not infringe the intellectual property rights or other rights of any person or entity, including without limitation any copyright, moral rights, trademark, patent, right of publicity or right of privacy;
  3. your artwork does not contain material that is false, inaccurate, misleading, incomplete, defamatory or libelous obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy, in violation of anyone’s rights, including their privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
  4. your artwork and content are accurate, not misleading or deceptive and do not offer or disseminate fraudulent or counterfeit goods, products, services, schemes, or promotions.

TERMINATION OF SERVICES

  • We may suspend or terminate your access to the Services if you are determined to be, in our sole discretion, in violation of these Agreement or any of our policies. We may also suspend or terminate your access to all or any part of the Services or your account at any time, with or without cause, with or without notice, effective immediately.
  • You may terminate this Agreement at any time by terminating your use of the Services.
  • On termination of this Agreement for any reason, the rights and licenses granted to you hereunder will immediately terminate and the provisions of these Terms that by their nature and context are intended to survive termination will survive. We will have no liability to you for any damages, loss of profits or other claims arising from the termination or suspension of your access to the Services or your account.

Upon termination we will suspend your account and remove your artwork, if any, from the Services within ninety (90) days. Without limitation of the foregoing, we will have the right to retain copies of your account information, artwork and content in our archives for our internal business and legal purposes. Unless your account has been terminated for a breach of these Agreement or any of our policies, as determined by us in our reasonable discretion, you will be paid, in the ordinary course, any Artist Share owed to you through the termination of your account.

If you believe that your account has been erroneously or unfairly suspended or terminated, please contact us so we may further investigate. If you are still unsatisfied or feel that you have not been treated fairly, please see the section below for Resolution of Disputes.

 

BUYING AND SELLING PRODUCTS 

Orders

All products are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue products without notice, even if you have already placed your order. Your placement of an order as a customer does not necessarily assure that we will accept your order. We reserve the right to refuse any order in our sole discretion. In addition, before accepting your order, we may require additional information if you have not provided all the information required by us to complete your order.

Generally, use of the Services is limited to orders for your personal use. However, if you are interested in buying large quantities of products, please contact our team.

Payments

If products or services are made available for purchase through the Services and you wish to purchase the products or services, you may be asked by us or our designee (or, if the products or services are being made available by a third party provider, by the third party provider) to supply certain information relevant to your purchase, including, without limitation, credit card number, expiration date, billing address and shipping information.

YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED BY YOU OR THROUGH YOUR ACCOUNT TO PURCHASE ANY PRODUCT AND/OR SERVICE.

You acknowledge that any such information will be treated by us in accordance with our Privacy Policy. You grant us the right to provide such information to third parties in order to facilitate the completion of transactions initiated by you or on your behalf through the Services. Verification of information may be required prior to acceptance of any order through the Services.

Taxes and Shipping

Applicable taxes will be shown during the checkout process prior to finalizing your order. If applicable, VAT is included in the purchase price. Shipping charges will be shown during the checkout process prior to finalizing your order. Shipping charges include the rate we are charged by third parties for sending your order, plus a reasonable amount for packaging and handling. Title to products passes to you upon shipment. We endeavor to deliver all orders on-schedule. However, we cannot guarantee that our shipping providers or suppliers will not experience any shipping delays or problems.

Errors, Inaccuracies and Omissions

On rare occasions, you might find that the product you receive does not match what you saw online. If that occurs, let us know.

We strive to be as accurate as possible. However, we do not warrant that all product descriptions, images, photographs, pricing or other information on the Services are accurate, complete, current, or error-free. In addition, all weights and size dimensions are approximate. If a product offered by us is not as described or pictured, your sole remedy is to return it in an unused condition for a refund in accordance with our Return, Exchange and Refund policies below. In the event of an error, whether on the Services, in an order confirmation, in processing an order, in delivering a product or otherwise, we reserve the right to correct any error and revise your order accordingly, or to cancel the order and refund any amount charged. IF YOU RECEIVE AN ORDER THAT YOU BELIEVE CONTAINS A MISTAKE, WE ENCOURAGE YOU TO CONTACT US RIGHT AWAY SO THAT WE MAY CORRECT THE ERROR.

 

Return, Exchange and Refund Policies

As much as we’d like to, we can’t always guarantee your happiness with a product. To address this, we have a return policy.

Click here for the details of our return, exchange, and refund policies. We comply with the applicable laws and regulations with respect to returns, exchanges and refunds in your jurisdiction.

FORCE MAJEURE.

If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.

DISPUTE RESOLUTION.

The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.

Waivers and Disclaimers

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST US WITH RESPECT TO ANY ACTIVITIES, ARTWORK, CONTENT, ACTIONS OR INACTIONS OF ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY ILLEGAL, DEFAMATORY, OFFENSIVE, OR UNAUTHORIZED CONDUCT BY ANY USERS.

THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO OR THAT THE SERVICES WILL BE ERROR FREE OR THAT ALL TRANSACTIONS WILL BE COMPLETED. THE OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. TO THE EXTENT LEGALLY PERMITTED, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES.

 

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT AND WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF MONEY OR PROFITS, GOODWILL, DATA, ARTWORK, CONTENT OR REPUTATION, OR ANY PROPERTY DAMAGE OR PERSONAL INJURY WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST US ARISING OUT OF YOUR USE OF THE SERVICES.

REGARDLESS OF THE PREVIOUS PARAGRAPH, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO $100.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE SCOPE AND DURATION OF OUR WARRANTIES AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.

Indemnification

You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from and against any and all claims, demands, liabilities, damages, losses, fines, and expenses (including but not limited to, reasonable attorneys’ fees and other professional fees and costs of investigation) arising from or in any way related to: (a) your artwork, content or use of the Services, including without limitation, your sale of any products; (b) your (or anyone using your account’s) breach of these Terms or any of our policies; or (c) your violation of any law or the rights of any third party, including without limitation, any intellectual property rights or privacy rights. You may not settle any claim in any manner that binds us without our express prior written consent. We may withhold any amounts due to you pending the resolution of any claim subject to this indemnity and may apply those amounts to the resolution of that claim.

Modifications.

We reserve the right, at any time and in our sole discretion, to change these Terms, the Copyright and Trademark Policy and the Privacy Policy, in whole or in part, by notifying you as described in the Notices provision below. You are responsible for reviewing and complying with these Terms, the Copyright and Trademark Policy and the Privacy Policy), in effect at the time you use the Services. You acknowledge that you will be bound by the revised Terms, as of their effective date set forth therein, and your continued use of the Services constitutes acceptance of them.

Notices

Except as stated otherwise, all notices required from you under these Terms must be sent here or to any other address(es) specified by us from time-to-time, in our sole discretion. Legal notices will be served on our registered agent in the State of Virginia. We will provide you with notices about changes to the Services or these Terms, the Copyright and Trademark Policy, or the Privacy Policy by posting them on the Services or by sending an email to the email address you provide to us with your account. Legal notices will be provided to you at your email address. Email notices will be deemed given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid.

Alternatively, if applicable, we may give you legal notice by mail to the address provided during the PayPal verification process. In that case, notice will be deemed given three (3) days after the date of mailing.

California Residents

Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

HOW TO CONTACT US

If you have any questions or comments about these Terms or the Services, please contact us by email at admin@fluffyunikorn.com.

You also may write to us at:
Fluffy Unikorn
Attn: Legal Department
8200 Greensboro Dr., Ste 900
McLean, VA 22102