Gallery Partner Terms
Gallery Partner Terms & Conditions
To be an authorized Designer of Custom Miche Gallery Shells, you agree with Starling Web Marketing Direct, LLC, a Utah Limited Liability Company (dba “Custom Miche” and hereafter referred to as such) to abide by the terms and conditions contained in this agreement.
Please read this agreement carefully before registering and using the Custom Miche service as a Designer. By signing up for the Custom Miche Design Partner Program (hereafter "the Program"), you indicate your acceptance of this agreement and its terms and conditions and agree to be bound thereby.
PROGRAM TERMS & CONDITIONS
1. MICHE BAG LLC You agree that acceptance into the Program is based upon all applicants being approved by Custom Miche and, you further acknowledge and agree that the Program is managed and operated by Custom Miche. Outside of the scope of this agreement, you understand and accept that Custom Miche has final authorization regarding the inclusion or removal of any Designer taking part in the Program. Custom Miche retains to right to request the removal of a Designer or individual Gallery Shells from this program at any time.
2. COMMISSION. You agree and understand that you will be paid a 5% commission on any verified, non-fraudulent orders completed online at www.CustomMiche.com and www.Michebag.com (hereinafter collectively the “Site”). You agree that Custom Miche retains all rights to redact or cancel any pending commission payments if any evidence of fraudulent practices is suspected.
3. INTELLECTUAL PROPERTY. Custom Miche respects the intellectual property rights of others. We require that our users to do the same. Custom Miche may terminate the accounts of users who appear to infringe the copyright or other intellectual property rights of others.
If you believe that your Content has been copied in a way that constitutes copyright and/or trademark infringement, please notify Custom Miche's Copyright Agent, and provide the following information ("Notice"):
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright/trademark interest;
b. a description of the copyrighted work and/or trademark claimed to have been infringed;
c. a description of where the claimed infringing Content is located on our Site;
d. your address, telephone number, and email address
e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright/trademark owner, its agent, or the law;
f. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are authorized to act on behalf of the owner of the copyright/ trademark interest involved.
Custom Miche's Copyright Agent can be reached at: brad@custommiche.com.
4. ART WORK OWNERSHIP. Custom Miche acknowledges that it does not own any Designer art work, but Custom Miche reserves the right to change any art work accepted into the Program within the boundaries of shell presentation and construction. If the Designer does not like the changes made for the Program the Designer may ask that the shell be terminated from the Program in the manner set forth below.
5. PAYMENT. Payment of the commissions that are legally due will be made on a “Net 30” basis at the close of each calendar month. Designer payments will be based on the amount of valid tracked sales for the Custom Miche product alone. The Designer will not be paid a commission on any products ordered through the Site outside of the Custom Miche products.
6.RETURNS/VOIDS. You accept and agree that no commissions will be paid regarding any sales that are returned or voided within thirty days of the date of sale at the sole discretion of Custom Miche.
7. PAYMENT FRAUD. You accept and agree that any instance in which Custom Miche suspects a Designer to be using deceptive practices to generate sales under this agreement will result in immediate termination of the Designer from the Program and may result in forfeiture of any earned commissions at the time of termination.
8. TERMINATION/DISCONTINUANCE OF SITE. You agree that Custom Miche, in its sole discretion, may terminate your password, account (or any part thereof) and/or use of the Site, and remove and discard any Content you may have contributed to the Site, at any time for any reason or no reason. Custom Miche may also in its sole discretion and at any time discontinue providing the Site, or any part thereof, with or without notice. You further agree and acknowledge that any termination of your access to the Site under any provision of this Agreement may be effectuated without prior notice and that Custom Miche may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files of the Site. Further, you agree that Custom Miche shall not be liable to you or any third-party for any termination of your access to the Site. Should you become dissatisfied with the Site in any way, your only recourse is to immediately discontinue your use of the Site and/or terminate your account.
9. NUMBER OF DISPLAYED SHELLS;ARCHIVING/REMOVING YOUR ARTWORK. There are presently no up-front fees to be paid by you as a participant with Custom Miche in the gallery pursuant to the tems and conditions set forth herein. However, there is a limit to the total number of shells designed by you that can be displayed in the gallery at any one time, which limit is Fifteen (15) designed shells. Therefore, you may not display more than fifteen designed shells at any one time in gallery. Such limit, however, does not include designed shells that have been archived or removed from the gallery by you and/or Custom Miche; it applies only to the number of shells designed by you that is being displayed in the gallery at any one time. Any shell(s) designed by you in the gallery that has not sold within sixty (60) days following its inclusion in the gallery shall be archived (removed from the Site) by Custom Miche, and notice by e-mail shall be given within a reasonable time to you. However, if you desire that any such designed shell(s) that has been archived be returned to the gallery or if you desire to have more than fifteen shells that have been designed by you be on display in the gallery at any one time, you may contact Custom Miche and make such request in writing, and Custom Miche will consider such request(s) and make the final decision at its own discretion. You will be notified of Custom Miche’s decision within a reasonable time following its receipt of your written request. (Factors that can affect Custom Miche’s decision regarding such request(s) include, but are not limited to, whether other shells designed by you have sold well, what affiliates you may have that participate in the gallery, whether the designs are licensed, etc.) If at any time you would like to remove your art work from the Custom Miche Site, please e-mail design@custommiche.com from the e-mail address we have on file with the name of the work you would like to remove and the URL of the shell, and Custom Miche will remove the art work as requested.
6. OWNERSHIP. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Custom Miche services and/or products identified herein ("Custom Miche Intellectual Property Rights") are owned by Custom Miche or its licensors, and you agree to make no claim of interest in or ownership of any such Custom Miche Intellectual Property Rights. You acknowledge that no title to the Custom Miche Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Custom Miche or its licensors' services and/or products, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Custom Miche and all right, title and interest in and to each such Derivative Work shall automatically vest in Custom Miche. Custom Miche shall have no obligation to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY CUSTOM MICHE SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL CUSTOM MICHE, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM NETWORK SOLUTIONS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF CUSTOM MICHE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN CUSTOM MICHE'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Custom Miche and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of god; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your web site or your Custom Miche web site; (8) loss or liability from your inability to use our e-mail service, web site manager service or any component of the subscription service (for websites from Custom Miche); (9) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your domain name record or your agent's failure to pay any fees, including the initial registration fee or re-registration fee; (10) loss or liability as a result of the application of our dispute policy; or (11) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in xml, xkms, or any other standard not under Custom Miche’s sole control. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED IN THE JURISDICTION SET FORTH IN THIS AGREEMENT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.
8. DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF OUR SERVICE(S) OR OUR LICENSORS' SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER CUSTOM MICHE NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NEITHER WE NOR OUR LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
9. INDEMNITY. You agree to release, indemnify, defend and hold harmless Custom Miche and any of our (or their) contractors, agents, employees, officers, directors, members, owners, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Custom Miche services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the service(s) provided, and/or (e) any information or data you supplied to Custom Miche, including, without limitation, any misrepresentation in your application, if applicable. When Custom Miche is threatened with suit or sued by a third party, it may seek written assurances from you concerning your promise to indemnify it; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. Custom Miche shall have the right to participate in any defense by you of a third-party claim related to your use of any of the Custom Miche services, with counsel of our choice at our own expense. Custom Miche shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend Custom Miche against any claim, but you must receive its prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement. Addtionally, in the event either party hereto shall be required to employ an attorney for the enforcement of any provision of this Agreement, with or without suit, the defaulting party agrees to pay the prevailing party's attorney fees.
11. REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (i) neither your registration nor use of the any of the Custom Miche services and/or products nor the manner in which you intend to use such services and/or products will directly or indirectly infringe the legal rights of any third party, including any intellectual property rights, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you are of legal age to enter into this Agreement and (iv) you agree to comply with all applicable laws and regulations.
12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that Custom Miche may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the service(s) on Custom Miche’s sites, or upon notification to you by e-mail or United States mail. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing Custom Miche with notice. Notice of your termination will be effective upon receipt and processing by Custom Miche. Any fees paid by you if you terminate this Agreement are nonrefundable, except as expressly noted otherwise herein. By continuing to use Custom Miche services and/or products after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. Custom Miche is not bound by nor should you rely upon any representation by any agent, representative or employee of any third party that you may use to apply for our services. No employee, contractor, agent or representative of Custom Miche is authorized to alter or amend the terms and conditions of this Agreement without the express written consent of Custom Miche.
14. AGENTS. You agree that, if your agent (e.g., your designated contact persons, Internet Service Provider, employee or other authorized persons) purchased Custom Miche service(s) and/or products on your behalf, you are nonetheless bound as a principal by all terms and conditions herein. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
16. NOTICES AND ANNOUNCEMENTS. (a) Except as expressly provided otherwise herein, all notices to Custom Miche shall be in writing and delivered via overnight courier or certified mail, return receipt requested to Custom Miche Web Marketing Direct, LLC, Attention: Custom Miche, 1545 S 4800 E, Salt Lake City, UT 84104. All notices to you shall be delivered to your mailing address or e-mail address as provided in your account information (as updated by you pursuant to this Agreement). (b) You authorize Custom Miche to contact you as our customer via telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), which telephone number is incorporated herein by reference, e-mail or postal mail regarding information that Custom Miche deems is of potential interest to you. Notices and announcements may include commercial e-mails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security.
17. SEVERABILITY. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
18. ENTIRE AGREEMENT. You agree that this Agreement, the rules and the policies incorporated by reference in this Agreement (including, without limitation, the dispute policy and the privacy statement) are the entire, complete and exclusive agreement between you and Custom Miche regarding its services and products and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for the services.
19. ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Custom Miche’s option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of Custom Miche’s services (or portion thereof) and/or products without its prior express written consent.
20. GOVERNING LAW. You and Custom Miche agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of Utah, United States of America, excluding its conflict of laws rules. You and Custom Miche each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the state courts and/or United States District Court in Salt Lake County, Utah, as Custom Miche shall determine, for any disputes between you and Custom Miche under, arising out of, or related in any way to this Agreement (whether or not such disputes also involve other parties in addition to you and Custom Miche). The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
21. AGREEMENT TO BE BOUND. By applying for Custom Miche service(s) through our online application process or otherwise, or by using the service(s) provided by Custom Miche under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
22. INDEPENDENT PARTIES. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
23. WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Custom Miche. The remedies of Custom Miche under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
26. FORCE MAJEURE. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order, regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Custom Miche, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Custom Miche may immediately terminate this Agreement.
27. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
28. SURVIVAL. In the event this Agreement terminates as provided herein, Sections 1-28 of this Agreement shall survive such expiration or termination.
Last Updated on January 13, 2011.