Enroll : Introduction

Getting Started

You're just a few short steps away from having your own custom product website. This will be quick and painless – we promise! Instructions for each step are provided in the column to the right. We have carefully designed this process to be intuitive and simple to use however, if at any point you have a question about a step, just call or email us – we're here!!

Online Agreement

ONLINE CUSTOM WEBSITE AGREEMENT

This Online Custom Website Agreement (the "Agreement") states the terms and conditions governing the development of the Distributor Website by Creative Merchandise, LLC, a California limited liability company ("CM").  By clicking on the "I ACCEPT" buttons at the end of this Agreement and below this browse-wrap window, you (the "Distributor") agree to be legally bound by each of the terms and conditions of this Agreement.  If you do not wish to be legally bound by the terms and conditions of this Agreement, you must either exit the website or click on the any of the "CANCEL" buttons found in this Agreement or below this browse-wrap window.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the sufficiency and receipt of which are hereby acknowledged, CM and Distributor, intending to be legally bound, hereby agree as follows:

1. Definitions.  In addition to the capitalized terms defined elsewhere in this Agreement, as used in this Agreement, the following capitalized terms have the meanings given to them in this Section 1.  All references to dollars or use of the "$" symbol shall refer to United States dollars.

1.1 "Custom Website Platform" means CM's proprietary custom website platform, including the underlying copyrights and other intellectual property rights embodied therein to assist in the marketing and sale of corporate promotional products.

1.2 "Distributor" means the individual entering into this Agreement for whom CM will develop, host and maintain the Distributor Website pursuant to this Agreement.

1.3 "Distributor Marks" means all proprietary marks (including, without limitation any trademarks, service marks, trade dress, or other marks or logos) of Distributor or Distributor's affiliates heretofore or hereinafter registered or used.

1.4 "Distributor Proprietary Information" means Distributor's confidential or proprietary information relating to its business disclosed by Distributor to CM pursuant to this Agreement, including, without limitation, information regarding Distributor's current and prospective customers, marketing strategies, and product development.

1.5 "Distributor Website" means the custom website based on the Custom Website Platform to be developed, hosted and maintained by CM for Distributor pursuant to this Agreement.

1.6 "Effective Date" means the effective date of this Agreement. This Agreement will be deemed effective, subject to CM's right to decline described in Section 5.1 below, when Distributor completes the Enrollment Process, including, without limitation, clicking on each of the "I ACCEPT" buttons at the end of this Agreement and below this browse-wrap window.

1.7 "Enrollment Process" means the process set forth in CM's website which Distributor must follow to engage CM to develop, host and maintain the Distributor Website, including, without limitation, acceptance of this Agreement, input of Distributor Website specifications and authorization for credit card payments.

1.8 "Improvements" means any improvement, refinement, enhancement or other modification of, or any addition to the Custom Website Platform or the Distributor Website developed or conceived by Distributor or CM.

2. License Grant.  Subject to the terms and conditions of this Agreement, for the duration of this Agreement, Distributor hereby grants to CM, under all of Distributor's intellectual property rights therein, a world-wide, non-exclusive, royalty-free, non-sublicensable, non-transferable and revocable license to use the Distributor Marks in conjunction with the development, hosting and maintenance of the Distributor Website.

3. Fees and Payments.  In consideration for CM's development, hosting, maintenance, and technical support of the Distributor Website, Distributor shall pay CM a monthly fee (the "Fee") equal to $99.00 for each Distributor Website developed, hosted and maintained by CM during the term of this Agreement.  The Fee shall be due and payable in advance on a quarterly basis on the last day of each calendar quarter (or portion thereof).  Unless otherwise agreed to in writing by the parties, the Fee shall be billed to Distributor's credit card account when due. No refunds will be issued for partial use of a quarter.

4. Marketing of Custom Website Platform.  CM, as owner of the Custom Website Platform, the Improvements and the intellectual property rights embodied therein, shall be permitted to market the Custom Website Platform and any Improvements to any third party and to develop, maintain and host third party custom websites, or to develop its own custom websites, provided such activities do not conflict with or violate any of CM's obligations set forth herein.

5. Development, Maintenance and Support of the Distributor Website.

5.1 Specifications and Development of Distributor Website. As part of the Enrollment Process, Distributor will enter specifications for the Distributor Website to be developed by CM.   Subject to the terms and conditions herein or as otherwise described in the Enrollment Process, CM will develop the Distributor Website unless CM declines, at its sole discretion, to develop a Distributor Website and notifies Distributor of such decision within three (3) business days of Distributor's completion of the Enrollment Process.

5.2 Domain Names.  As part of the Enrollment Process, Distributor may select a domain name (a "Domain Name") to be used for the Distributor Website.  Each Distributor Website will be hosted using a Domain Name distinct from that owned or currently used by the Distributor.

5.3 Maintenance and Technical Support Relating to the Distributor Website.  CM shall provide reasonable maintenance and technical support services relating to the Distributor Website; provided, however, in the event the performance of any such maintenance or support services requires CM to incur costs in excess of $2,500 in any single instance, Distributor and CM shall agree on a mutually acceptable course of action to share the burden of such expenses.

5.4 Accuracy of Distributor Website Information.  Distributor acknowledges and agrees that CM shall not be responsible for the accuracy of any information specified by Distributor to be posted on the Distributor Website.  Distributor shall indemnify CM, its members, agents, employees, affiliates, suppliers and assigns and undertake to defend and hold the foregoing parties harmless from and against any Claim (as defined in Section 10 below) relating to accuracy of the information posted on any Distributor Website.  CM shall, in its sole discretion, determine the method, details, and means of developing, altering or enhancing the Distributor Website.

6. Hosting of the Distributor Website and Maintenance of CM System.  CM shall (a) configure, install, house, maintain, upgrade, monitor, modify and operate the computer equipment, server(s), operating software, network equipment and components (collectively, the "CM System") and (b) secure and maintain connectivity with third-party telecommunication providers, all as necessary to host and serve the Distributor Website.  Distributor acknowledges that, as a part of CM System, CM may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the hosting services.  CM retains sole right and control over the programming, content and conduct on the CM System.  CM shall solely be responsible for the maintenance, functionality improvements, and/or repairs of the CM System and expenses relating thereto.

7. Ownership of Intellectual Property.

7.1 Work Made for Hire.  None of the work performed by CM under this Agreement shall be deemed "work made for hire," and Distributor shall not be deemed the owner of any such work, including the Distributor Website and the intellectual property rights embodied therein, unless expressly stated otherwise herein.

7.2 Distributor Marks.  Subject to the rights granted in this Agreement, Distributor is and shall remain at all times the sole and exclusive owner of the Distributor Marks, and the intellectual property embodied therein.  CM acknowledges that Distributor owns the Distributor Marks and all rights embodied therein and that nothing in this Agreement shall give CM any right, title or interest in or to the Distributor Marks other than pursuant to the license granted herein.

7.3 Custom Website Platform and Improvements.  CM is and shall remain at all times the sole and exclusive owner of the Custom Website Platform, the Improvements and the intellectual property rights embodied therein.  Distributor acknowledges that CM owns the Custom Website Platform, the Improvements and all rights embodied therein and that nothing in this Agreement shall give Distributor any right, title or interest in or to the Custom Website Platform or the Improvements.

7.4 Domain Names.  Subject to the rights granted in this Agreement, CM is and shall remain at all times the sole and exclusive owner of the Domain Names registered by CM as part of the Distributor Website development.  Any cost incurred by CM to obtain, maintain or renew the Domain Names shall be CM's sole responsibility.  CM shall be the sole billing and technical contact for the Domain Names.

7.5 Restrictions.

(a) General.  The parties agree that they will do nothing inconsistent with the other party's ownership as set forth in this Section 7, and shall not claim adversely to such other party's rights, or assist any third party in attempting to claim adversely to such other party, with regards to such ownership. Each party agrees that it will not challenge the title of the other party to their respective intellectual property rights, oppose any registration thereof, or challenge the validity of this Agreement or the licenses granted herein.

(b) Modifications.  Any change, modification, addition, or alteration to the Custom Website Platform or any of the Distributor Website by Distributor is strictly prohibited.  Changes, modifications, additions, and/or alterations to the Custom Website Platform or the Distributor Website shall be performed only by or under the direction of CM.  In the event that any changes, modifications, additions, and/or alterations are made to the Custom Website Platform or the Distributor Website, Distributor agrees that such changes, modifications, additions, and/or alterations, including, but not limited to, any and all changes, modifications, additions and/or other databases, shall be the sole property of CM, unless CM shall have given its prior written consent to the contrary.  Distributor assigns all right, title, and interest to such changes, modifications, additions, and alterations to CM and agrees to execute and deliver to CM all additional papers and generally do all other and further lawful acts reasonably deemed necessary by CM to perfect or otherwise register CM's interest therein.

(c) Third Parties.  Distributor may not, nor may Distributor cause or allow any third party under its reasonable control to: (i) modify or create any derivative work(s) of the Custom Website Platform or the Distributor Website; (ii) decompile, disassemble, reverse engineer or translate the Custom Website Platform or the Distributor Website or otherwise attempt to derive the underlying code for any part of the Custom Website Platform or the Distributor Website except to the extent expressly permitted by applicable law; (iii) remove, alter, or destroy any proprietary markings contained on or in the Distributor Website as originally delivered by CM; (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights or provide access by any third party to any part of the Distributor Website or any media in which the Distributor Website is embodied; (v) use the Distributor Website in any way that would infringe any third party intellectual property right (including inputting specifications which infringe on any third party intellectual property rights) or breach the terms of any agreement between Distributor and any third party; or (vi) otherwise use or copy the Distributor Website except as expressly provided herein.

8. Term and Termination.

8.1 Term and Termination. CM reserves the exclusive right to terminate this agreement at any time.

9. Confidentiality.

9.1 Definition.  As used in this Agreement, "Confidential Information" means the confidential and proprietary information of a party (the "Disclosing Party"), including, but not limited to, all know-how, trade secrets and other information relating to, contained in, or embodied in the Distributor Proprietary Information, Distributor Marks, Custom Website Platform, Distributor Website, Domain Name and the terms and conditions of this Agreement. The Confidential Information of a Disclosing Party, however, shall not include any information of the Disclosing Party that: (a) at the time of its disclosure was known to the party receiving such information (the "Receiving Party") or any of its agents, as evidenced by contemporaneous, dated written records; (b) is independently discovered or developed by the Receiving Party independent of the Receiving Party's receipt of, and without any reference to, such information; (c) was generally known to the public prior to its disclosure to the Receiving Party, or becomes generally known to the public through no fault of the Receiving Party; or (d) the Disclosing Party expressly authorizes the Receiving Party to disclose.

9.2 Nondisclosure.  The Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any person, except on a confidential basis to the Receiving Party's employees, agents, professional advisors, affiliates, or assignees who have a need to know such Confidential Information in order to fulfill or to assist the Receiving Party in fulfilling the Receiving Party's obligations, or to exercise or assist the Receiving Party in exercising, its rights under this Agreement and who are bound in writing, or by the ethical standards of their profession, to preserve the confidentiality thereof.  The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purposes other than those permitted under this Agreement.  The Receiving Party shall diligently preserve the confidentiality of the Confidential Information of the Disclosing Party and shall exercise at least such care as the Receiving Party employs to preserve the confidentiality of its own Confidential Information, but in no event less than reasonable care.

9.3 Compelled Disclosure.  The Receiving Party shall have the right to disclose the Confidential Information of the Disclosing Party if compelled to do so under court order, other lawful process, or applicable laws, rules, or regulations, including those applicable to securities.  If the Receiving Party is compelled to disclose the Confidential Information of the Disclosing Party, the Receiving Party: (a) may disclose the Confidential Information only to the extent required to fulfill such court order, lawful process, or legal requirement, (b) shall notify the Disclosing Party of the compelled disclosure promptly and prior to disclosure, so that the Disclosing Party may seek an appropriate remedy to prevent such disclosure, and (c) shall request that the person demanding the production of the Confidential Information allow the Disclosing Party a reasonable period of time in which to seek such remedy or a protective order.  If the disclosure of the Disclosing Party's Confidential Information is compelled by securities laws, rules, or regulations to be made in a public announcement or publicly filed document, the Receiving Party shall consult with the Disclosing Party on the wording of the disclosure in such public announcement or publicly filed document.

9.4 Equitable Relief.  Each party acknowledges that the other party's Confidential Information is of a special and unique character which gives it particular value, and that a breach thereof could result in irreparable and continuing damage for which there can be no reasonable or adequate damages, remedy or compensation in an action or at law.  Each party expressly agrees that the other party shall be entitled to injunctive relief, a decree for specific performance and/or other equitable relief in the event of any breach or threatened breach by the other of its obligations or promises under this Section, in addition to any other rights or remedies which it may possess (including monetary damages, if appropriate).

10. Indemnification.

10.1 General.  Each party (the "Indemnifying Party") shall indemnify the other party, its members or shareholders, present and future officers, directors, agents, employees, affiliates, suppliers and assigns (each, an "Indemnified Party"), and undertake to defend and hold the Indemnified Party harmless from and against any claim, demand, suits, cause of action, losses, penalties, obligations, liabilities, damages, and expenses (including court costs, reasonable attorneys' fees, interest expenses and amounts paid in compromise or settlement) ("Claim") claimed by any person or entity related to, caused by, arising from or on account of the risks assumed by the Indemnifying Party hereunder or the Indemnifying Party's failure to comply with any term, condition, covenant, or provision contained in this Agreement.

10.2 Indemnification Procedures.  If the Indemnified Party determines that it is entitled to indemnification under this section, the Indemnified Party shall notify the Indemnifying Party promptly and in writing of the Claim brought against the Indemnified Party, but in no event more than ten (10) days after the Indemnified Party has received notice of such Claim.  The selection of counsel, the conduct of the defense of any lawsuit, arbitration, or other proceeding, and any settlement shall be within the Indemnifying Party's control, provided that the Indemnified Party shall have the right to participate in the defense of such Claim using counsel of its choice, at its expense.  No settlement that would impose any costs or expense upon the Indemnified Party shall be made without the Indemnified Party's prior written consent.

11. Disclaimer and Limitation on Liability.

11.1 General.  The terms of this Section 11 are an essential part of the bargain, without with the parties would not be willing to enter into this Agreement.

11.2 Disclaimer.  ALL INFORMATION, DELIVERABLES, MATERIALS AND TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, THE DISTRIBUTOR WEBSITE, ARE PROVIDED "AS IS." CM AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION THAT MIGHT ARISE FROM ANY ACTIVITIES OR INFORMATION DISCLOSURES RELATING TO THIS AGREEMENT, ANY OTHER AGREEMENT OR ANY OTHER ACTIVITY OF CM.

11.3 Limitation on Liability.  CM, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, MEMBERS, REPRESENTATIVES, EQUIVALENT CORPORATE OFFICIALS, OR EMPLOYEES ACTING IN THEIR CAPACITIES AS SUCH (COLLECTIVELY, THE "AFFECTED PARTIES") SHALL BE LIABLE TO DISTRIBUTOR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF ANY CAUSE OF ACTION RELATING TO THIS AGREEMENT, OR BASED ON THE MAKING, USING, SELLING, PERFORMING, RENDERING, OFFERING FOR SALE OR IMPORTING ANY PRODUCTS OR SERVICES OF DISTRIBUTOR USING OR IMPLEMENTING THE DISTRIBUTOR WEBSITE WHETHER UNDER THEORY OF CONTRACT, TORT, INDEMNITY, PRODUCT LIABILITY OR OTHERWISE.  WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE AFFECTED PARTIES' AGGREGATE LIABILITY TO DISTRIBUTOR OR ANY OF THE DISTRIBUTORS ARISING OUT OF ANY AND ALL CAUSES OF ACTION RELATING TO THIS AGREEMENT, OR BASED ON THE MAKING, USING, SELLING, PERFORMING, RENDERING, OFFERING FOR SALE OR IMPORTING ANY PRODUCTS OR SERVICES OF DISTRIBUTOR USING OR IMPLEMENTING THE DISTRIBUTOR WEBSITE, WHETHER UNDER THEORY OF CONTRACT, TORT, INDEMNITY, PRODUCT LIABILITY OR OTHERWISE, EXCEED THE FEES DESCRIBED IN SECTION 3 ACTUALLY RECEIVED BY CM FROM DISTRIBUTOR UNDER THIS AGREEMENT DURING THE PRECEDING NINETY (90) DAY PERIOD.

12. General Provisions.

12.1 Relationship of Parties.  Each party will perform its obligations hereunder as an independent contractor and except as specified herein will be solely responsible for its own financial obligations and costs incurred in performing their respective obligations under this Agreement.  This Agreement will not create a joint venture, partnership, or principal and agent relationship between the parties.  Neither party will have the authority or will represent that it has the authority to assume or create any obligation, express or implied, on behalf of the other, except as expressly provided in this Agreement.

12.2 Entire Agreement.  Except as maybe expressly provided herein, this Agreement constitutes the entire and only agreement between the parties with reference to the subject matter hereof and supersedes any prior agreement, oral or written, with respect thereto.  The parties further agree that no representation, warranty, agreement or covenant has been made with regard to this Agreement, except as expressly recited herein, and that in entering into this Agreement no party is relying upon any representation, warranty, agreement or covenant not expressly set forth herein.  This Agreement may be modified only by an agreement in writing executed by the parties to this Agreement against whom enforcement of such modification is sought.

12.3 Further Assurances.  Each of the parties hereto covenants, without the need for additional consideration, that it shall take such further actions and execute upon request any further documents as may reasonably be required or desired to effectuate fully the terms, conditions, and intent of this Agreement and to fully vest in the other party the rights, licenses, and other benefits provided hereunder.

12.4 Waiver.  Any waiver of a default under this Agreement shall be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.  No delay or omission in the exercise of any rights or remedies shall impair its right or remedy or be construed as a waiver.  A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act.

12.5 Survival.  The parties' obligations under this Agreement, which by their nature would continue beyond termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement.

12.6 Notices.

(a) Method of Transmission.  All notices or other communications required or permitted to be given to a party to this Agreement shall be in writing and shall be personally delivered, sent by registered or certified mail, postage prepaid, return receipt requested, sent by facsimile followed by registered or certified mail, postage prepaid, or sent by an overnight, commercial express courier service that provides written confirmation of delivery, to such party at the following respective addresses:  (a) CM: Creative Merchandise, LLC, 1380 Greenwich #206, San Francisco, CA 94109, Attention: Manager, Facsimile: (415) 276-3180 and (b) Distributor: To the address or facsimile inputted by Distributor as part of the Enrollment Process.
(b) Time of Notice.  Each such notice or other communication shall be deemed given, delivered and received upon its actual receipt, except that (i) if it is mailed in accordance with the provisions of sub-section(a) above, then it shall be deemed given, delivered and received ten (10) days after the date such notice or other communication is deposited with the United States Postal Service, (ii) three (3) days after deposit with a commercial courier service as provided above, or (iii) if it is sent by facsimile according to the provisions of sub-section(a) above, it shall be deemed received at the time stated on the facsimile confirmation report, provided that the facsimile report states that the entire facsimile was sent successfully.  Any party to this Agreement may give a notice of a change of its address to the other party to this Agreement.

12.7 Inurement.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective affiliates, subsidiaries, successors and assigns.

12.8 Interpretation.  Whenever the context so requires in this Agreement, all words used in the singular shall be construed to have been used in the plural (and vice versa), each gender shall be construed to include any other genders, and the word "person" shall be construed to include a natural person, a corporation, a firm, a partnership, a joint venture, a trust, an estate, or any other entity.

12.9 Partial Invalidity.  The provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by law.  If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or the application of such provision is essential to the Agreement.

12.10 Applicable Law, Jurisdiction and Venue.  The validity, construction, and performance of this Agreement shall be governed by the laws of the United States and of the State of California, without regard to principles of conflicts of law.  The parties agree that any controversies arising under this Agreement shall be presented before the federal and state courts located in San Francisco County, California and said courts shall have exclusive jurisdiction. The parties waive any and all objections that they may have as to personal jurisdiction or venue in any of the above courts and agree to accept service of process by mail.

12.11 Recovery of Costs and Expenses.  The prevailing party as to any disputes relating to this Agreement shall be entitled to recover from the unsuccessful party all costs, expenses and reasonable attorneys' fees relating to the enforcement or interpretation of, or any litigation or arbitration relating to, this Agreement.

DISTRIBUTOR ACKNOWLEDGES THAT BY CLICKING ON THE "I ACCEPT" BUTTON BELOW AND BELOW THIS BROWSE-WRAP WINDOW, HE OR SHE AGREES TO BE LEGALLY BOUND BY EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  MOREOVER, DISTRIBUTOR UNDERSTANDS THAT BY CLICKING ON THE "CANCEL" BUTTON BELOW OR BELOW THIS BROWSE-WRAP WINDOW, THERE WILL BE NO BINDING CONTRACT BETWEEN DISTRIBUTOR AND CM WITH RESPECT TO THE DEVELOPMENT OF THE DISTRIBUTOR WEBSITE.

No, CANCEL Yes, I AGREE

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Instructions

Please carefully read the agreement below. When you are done click the 'I Agree' button and then 'Go to Step 1'.