Terms of Service ⋆ DefCan

Terms & Conditions

The terms and conditions stated herein (collectively the “Agreement”) constitute a legal agreement between the customer and DefCan, LLC (the “Company”). By purchasing, using or receiving any products or services from the Company the customer expressly acknowledges and agrees to be bound by this Agreement, and any future amendments and additions to this Agreement as published from time to time at the company’s website (www.DefCan.com).

Disclaimer & Acknowledgement

The Company is an online retailer that delivers artwork and retail merchandise to its customers. Any and all financial charges to the customer are based on the fair market value of the artwork or retail merchandise and include the cost of packaging and delivery.

The Company only provides products and services within the District of Columbia. The customer expressly acknowledges that the Company will not deliver outside of the borders of the District of Columbia. The Company‘s principal place of business and only service area is Washington, D.C. and District of Columbia law governs all transactions between the Company and the customer. The Company strictly adheres to District of Columbia law.

The Company reserves the right to modify this Agreement or its policies relating to its products and services at any time, effective upon posting of an updated version of this Agreement on the Company’s website. The customer is responsible for regularly reviewing this Agreement. By purchasing and receiving products and/or services through the Company’s website the customer acknowledges, understands and accepts the terms of this Agreement.

Representations and Warranties

The customer agrees not to post, email, or otherwise make available Content: a) that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way; b) that advertises any illegal service or the sale of any items which are prohibited or restricted by the laws of his or her state of residency; c) attempt to gain unauthorized access to the Company’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Company’s website. By purchasing a service and/or product from the Company, the customer expressly represents and warrants that he or she may legally enter this Agreement.

Customers that reside in a jurisdiction with laws that differ or contradict the laws of the District of Columbia acknowledge that the services and/or products offered by the Company are not available to children (persons under the age of 21). By purchasing and/or receiving products or services from the Company the customer represents and warrants he or she is at least 21 years old. By purchasing and/or receiving products or services from the Company the customer represents and warrants that he or she has the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. The customer may not authorize others to use his or her status or profile on the Company’s website. The customer further agrees not to assign or otherwise transfer his or her user account to any other person or entity.

The Company reserves the right to terminate or suspend access to its products or services immediately, without prior notice or liability, for any reason the Company alone may deem necessary, including but not limited to the customer’s breach of the terms of this Agreement.

License Grant, Copyright Policy & Intellectual Property Rights

Subject to compliance with the terms and conditions of this Agreement, Company grants customers a limited, non-exclusive, non-transferable license: (i) to view, download and print any Company content solely for personal and non-commercial purposes; and (ii) to view any user content to which customers are permitted access solely for personal and non-commercial purposes. Customer do not have a right to sublicense any license rights granted in this section.

The customer will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the any content, except as expressly permitted in this Agreement. No licenses or rights are granted to the customer by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in this Agreement.

The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights related to its products, services and retail merchandise as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the customer or any other party relating to the Company’s products and services. This Agreement is not a sale and does not convey any rights of ownership in or related to the products or services, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Company’s products and services are trademarks of the Company.

Communications

The customer expressly consents and agrees to accept and receive communications from the Company, including via e-mail, text message, calls, and push notifications to the cellular telephone number the customer provides to the Company. By consenting to being contacted by the Company, the customer indicates that he or she understands and agrees to receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf the Company, its affiliated companies, including but not limited to: operational communications concerning customer accounts or the use of the Company’s website, products or services, updates concerning new and existing features on the Company’s website, communications concerning promotions run by the Company or its third-party partners, and news concerning the Company and industry developments. Standard text messaging charges applied by cell phone carriers will apply to text messages sent to customers by the Company. The customer acknowledges that he or she is not required to consent to receive promotional messages as a condition of using the Company’s website, products or the services. However, the customer acknowledges that opting out of receiving text messages or other communications may impact his or her use of the Company’s website, products or services.

Fee & Refund Policy

Any fees that the Company may charge you for products or services, are due immediately and are non-refundable. The Company’s no refund policy shall apply at all times regardless of the customer’s decision to terminate his or her usage and the Company’s decision to terminate usage. The Company reserves the right to determine the final prevailing pricing of all products and services. Please note the pricing information published on the website may not reflect the prevailing pricing for products and services.

The Company, at its sole discretion, may make promotional offers and set different rates for products or services available to its customers. These promotional offers are intended to promote the Company’s mission, featured artwork and other products. The Company may change the price of any product or service as it deems necessary for the Company. The Company encourages customers to check its website periodically for any changes to pricing changes or promotional offers.

Third-Party Websites

During use of the Company’s products and services, the customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-parties, advertisers or sponsors showing their goods and/or services on the Company’s website. The customer will be solely responsible for complying with the third-party’s usage terms, conditions, warranties or representations associated with its website. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between customers and any such third-party.

The Company does not endorse any sites on the Internet that are linked through its website, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available from such sites or third-party providers. The Company provides products and services to its customers pursuant this Agreement. The customer recognizes, however, that certain third-party providers of goods and/or services may require his or her agreement to additional or different terms and conditions prior to the use of or access to such goods or services, and the Company disclaims any and all responsibility or liability arising from such agreements between its customers and the third-party providers.

The Company may rely on third-party advertising and marketing on its website or other mechanisms to subsidize its products and services. By agreeing to these terms and conditions the customer agrees to receive such advertising and marketing. The Company may compile and release information regarding customers on an anonymous basis as part of a customer profile or similar report or analysis. The customer agrees that it is his or her responsibility to take reasonable precautions in all actions and interactions with any third-parties or third-party websites.

Indemnification

By entering into this Agreement and purchasing products and services from the Company, the customer agrees to defend, indemnify and hold the Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) the customer’s violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein; (b) the customer’s violation of any rights of any third-party, including providers of delivery services arranged by the Company, or (c) the customer’s use or misuse of the Company’s products and/or services.

Online Transactions

The Company’s products and services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. The Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Limitation of Liability

The Company and/or its licensors shall not be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including personal injury, loss of data, revenue, profits, use or other economic advantage). The Company and/or its licensors shall not be liable for any loss, damage or injury which may be incurred by the customer, including but not limited to loss, damage or injury arising out of, or in any way connected with its products or services.

The Company may engage third-party delivery service providers and the third-party cooperative in the course of its business operations. All delivery service providers are independent contractors and not employees of the Company. The Company will not assess the suitability, legality or ability of any third-party, and the customer expressly waives and releases the Company from any and all any liability, claims or damages arising from or in any way related to the third-party delivery service provider or the cooperative. The Company will not be a party to disputes, negotiations of disputes between a customer and any third-party providers. The Company cannot and will not play any role in managing payments between customers and third-party providers. Responsibility for the decisions made by a customer regarding services offered by the Company (with all its implications) rests solely with the customer. The Company will not assess the suitability, legality or ability of any such third-parties and the customer expressly waives and releases the Company from any and all liability, claims, causes of action, or damages arising from delivery or use of its products.

The quality of the delivery services scheduled through the Company are entirely the responsibility of the third-party delivery service provider that ultimately provides such delivery services to customers. The customer understands, therefore, that by using the delivery service her or she may be exposed to a delivery service provider that is potentially dangerous, offensive, harmful to minors, unsafe or otherwise objectionable, and that the customer consents to delivery at his or her own risk.

Dispute Resolution

The customer and the Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Company’s products or services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. The customer and the Company acknowledge and agree to waive the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both the customer and the Company otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.

Arbitration Rules and Governing Law.The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in Washington, D.C. and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure. Unless the customer and Company otherwise agree, the arbitration will be conducted in the county where in which he or she resides. If the customer’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the customer and Company submit to the arbitrator, unless he or she requests a hearing or the arbitrator determines that a hearing is necessary. If the customer’s claim exceeds $10,000, his or her right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.

Fees. It is the customer’s responsibility to pay any AAA filing, administrative and arbitrator fees as set forth in the AAA Rules.

Changes. Notwithstanding the provisions of the modification-related provisions above, if the Company changes this “Dispute Resolution” section after the date the customer first accepted this Agreement (or accepted any subsequent changes to this Agreement), the customer may reject any such change by sending the Company a notice to [email protected] with “Legal” in the subject line within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of the Company’s email to the customer notifying him or her of such change. By rejecting any change, the customer agrees to arbitrate any Dispute with the Company in accordance with the provisions of this “Dispute Resolution” section as of the date the customer first accepted this Agreement (or accepted any subsequent changes to this Agreement).

General

No joint venture, partnership, employment, or agency relationship exists between the customer, the Company or any third-party provider as a result of this Agreement. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under the law. The failure of the Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing.

This Agreement constitutes the entire agreement between the customer and the Company and governs the customer’s use and purchase of the Company’s products and/or services, and supersedes any prior agreements between the customer and the Company. This Agreement and the relationship between the customer and the Company shall be governed by the laws of the District of Columbia without regard to its conflict of law provisions. The customer and the Company agree to submit to binding arbitration for any dispute arising out of the relationship and that such arbitration will take place in Washington, D.C. The failure of the Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by an arbitrator to be invalid, the parties nevertheless agree that the arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. The customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement will be subject to the applicable statute of limitations.