Disclaimer of Liability

RD Creations, LLC makes no warranty, expressed or implied, as to the safety of any of our products. All of our products are sold as novelties only. Furthermore, we accept no responsibility for injuries sustained while using our products. The purchaser assumes all risk and liability of use for all our products.

Intellectual Property Permissions and License Agreement

This Agreement governs the terms by which you may purchase or commission a product with an image or word produced by RD Creations, LLC (the "Site").

Background of Agreement

(a)  By selecting the correct box at the end of this Agreement and selecting “I Agree” or otherwise signifying your acceptance via purchasing a product from RD Creations, LLC, you accept this Agreement and agree to be bound by its provisions. If you are accepting on behalf of your employer, client or other entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer, client or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept this Agreement and do not purchase the item.

(b) In this Agreement: (i) “you” means you or, if you are accepting on behalf of your employer, client or member account entity, then “you” means that employer, client or entity; (ii) “RD Creations, LLC” or “we” means the party identified in Section 9(k) below; and (iii) “item” means any engraved or produced item that you are purchasing from the Site, together with any accompanying material.

Term of Agreement

(a) This Agreement is effective until it is terminated. You can terminate this Agreement by paying 50% of all royalties you earn from the images provided by you to RD Creations, LLC.  RD Creations, LLC reserves the right to continue producing the items with the provided images without compensating you. 

(b) You agree that you will not knowingly provide images or commission works from RD Creations, LLC that may infringe upon the rights of another.  You agree that all products you purchase are for personal use only and that you have the legal right to commission such products with the images you choose.  

(c)  THE CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. RD CREATIONS, LLC DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH YOU. SHOULD THE PRODUCT PROVE DEFECTIVE, YOU (AND NOT RD CREATIONS, LLC) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.

 

Your Indemnification

You agree to indemnify, defend and hold RD Creations, LLC, its affiliates, its product providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “RD Creations, LLC Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any RD Creations, LLC Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.

RD Creations, LLC Indemnification and Limitation of Liability

(a) Provided that the Product is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 6 (a) above, RD Creations, LLC shall, subject to the terms of Sections 8(b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, distribution or use of the Content by you is in breach of the representations and warranties set forth in Section 6(a) above. The foregoing states iStock’s entire indemnification obligation under this Agreement.

(b) The indemnification set out in Section 8(a) above is conditioned on your prompt notification in writing to iStock of such claim and our right to assume the handling, settlement or defence of any claim or litigation. You agree to cooperate with iStock in the defence of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. iStock shall not be liable for legal fees and other costs incurred prior to the notice of the claim.

(c) IN NO EVENT SHALL ISTOCK OR ANY OF ITS AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.

(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, RD CREATIONS, LLC SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE PRODUCT BY YOU OR THE CONTEXT IN WHICH THE PRODUCT IS USED BY YOU.

(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF RD CREATIONS, LLC UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE PURCHASED SIMILAR PRODUCTS, REGARDLESS OF THE PRODUCT, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE PRODUCT AND PROVIDED IMAGES IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF RD CREATIONS, LLC UNDER SECTION 8(a) SHALL BE LIMITED TO AN AGGREGATE OF TEN  ($10) US DOLLARS PER PRODUCT. FOR GREATER CLARITY, RD CREATIONS, LLC’S LIABILITY TO YOU IN RESPECT OF THE PRODUCT SHALL NOT EXCEED TEN ($10) US DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU PURCHASE THE SAME PRODUCT FROM RD CREATIONS, LLC.

(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

General Provisions

(a) You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Agreement and Terms of Use and any other agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them. In the event of any inconsistency, the terms of this Agreement shall govern.

(b) RD Creations, LLC’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.

(c) This Agreement is personal to you and is not assignable by you without RD Creations, LLC’s prior written consent. RD Creations, LLC may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.

(d) No terms or conditions may be added or deleted unless made in writing and either accepted in writing by an authorized representative of both parties or issued electronically by RD Creations, LLC and accepted in writing by your authorized representative.

(g) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.

(h) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the purchase you make pursuant to this Agreement.

(i) This Agreement will be governed in all respects by the laws of the State of Arizona, U.S.A., without reference to its laws relating to conflicts of law. Any disputes arising from or related to this Agreement or its enforceability, or the business relationship between the parties, shall be finally settled by binding, confidential arbitration by a single arbitrator selected using the rules and procedures for arbitrator selection under the Commercial Rules of the American Arbitration Association ("AAA") in effect on the date of the commencement of arbitration (the applicable rules to be at your discretion) to be held in the jurisdiction of Phoenix, Arizona. The arbitration proceedings shall be conducted in English and all documentation shall be presented and filed in English. The decision of the arbitrator shall be final and binding on the parties, and judgement may be entered on the arbitration award and enforced by any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. The prevailing party shall be entitled to recover its reasonable legal costs relating to that aspect of its claim or defence on which it prevails, and any opposing costs awards shall be offset. Notwithstanding the foregoing, RD Creations, LLC shall have the right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or other relief against you in the event that, in the opinion of RD Creations, LLC, such action is necessary or desirable. The parties agree that, notwithstanding any otherwise applicable statute(s) of limitation, any arbitration proceeding shall be commenced within two years of the acts, events or occurrences giving rise to the claim.

10. Contact

If you have concerns relating to this Agreement, please contact RD Creations, LLC at info@thekinkfactory.com or via phone at 1 602 312 7892

11. Acknowledgement

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF RD CREATIONS, LLC AGREEING TO PROVIDE THE PRODUCT AND SERVICES DESCRIBED, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND RD CREATIONS, LLC, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND RD CREATIONS, LLC RELATING TO THE SUBJECT OF THIS AGREEMENT.

By purchasing an engraved or produced item with an image or word which you provide, you agree that you are the owner of the image provided to the Site for reproduction on a custom item and further the Site rights to use that image in future reproductions releasing RD Creations, LLC from any future monetary obligations and royalties.  Further, you agree that you will not bring civil or criminal suit against RD Creations, LLC for the use of such images on items sold in the future.  By commissioning the item to be made and by purchasing the item, you agree that you have the right to grant permission of use or license for the image and are granting that permission to RD Creations, LLC without limitations or expected future remuneration.