Through https://dreamship.com or any other associated websites, APIs, or mobile applications
(collectively, the "Dreamship Site"), [Dreamship, Inc.]
provides a platform for ecommerce merchants ("you") to purchase,
advertise and sell certain products through various channels, including, without limitation,
providing you access to third-party advertising platforms (e.g., Facebook Ads)
("Ad Platforms"), supply chain networks and advertisement campaign
data and related insights. The Dreamship Site and any other features, tools, materials, or
other services offered from time to time by Dreamship are referred to as the "Services."
THESE TERMS SET FORTH A LEGALLY BINDING AGREEMENT BETWEEN YOU AND DREAMSHIP THAT GOVERNS YOUR
USE OF THE SERVICES. BY ACCESSING OR OTHERWISE USING THE SERVICES, YOU ACCEPT THESE TERMS
HERE), AND ANY ADDITIONAL TERMS, RULES, OR CONDITIONS OF USE ISSUED BY DREAMSHIP FROM TIME
TO TIME, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO
ENTER INTO THESE TERMS (INDIVIDUALLY OR ON BEHALF OF THE ENTITY THAT YOU REPRESENT), OUR
NOT ACCESS THE DREAMSHIP SITE OR USE THE SERVICES.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH IN THESE TERMS
CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH DREAMSHIP ON AN INDIVIDUAL BASIS
(RATHER THAN THROUGH A CLASS ACTION) THROUGH FINAL AND BINDING ARBITRATION (RATHER THAN
THROUGH A JURY TRIAL). BY ENTERING INTO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE
READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS AND HAVE SPECIFICALLY
CONSIDERED THE CONSEQUENCES OF AGREEING TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH
Dreamship may amend these Terms from time to time. Amendments will be effective upon
Dreamship's posting of such updated Terms at this location or in the amended policies or
supplemental terms on the applicable Service(s). Your continued access or use of the
Services after such posting confirms your consent to be bound by these Terms, as amended.
Dreamship reserves the right to modify, suspend, or discontinue the Services, in whole or in
part, at any time, with or without notice to you. You agree that Dreamship will not be
liable to you or to any third party for such modification, suspension, or
- Registration. To use certain features of the Services, you must register for an account ("Account") and provide certain information about yourself as prompted by the account registration form. You represent and warrant that all required registration information you submit is truthful and accurate and that you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Services. Dreamship may suspend or terminate your Account in its sole discretion and may suspend access to the Services if Dreamship suspects that you have failed to comply with these Terms. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Dreamship of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security with respect to your Account. Dreamship hereby disclaims any and all liability for any loss or damage for your failure to comply with the requirements set forth in this Section 1. Dreamship may, in its sole discretion, refuse to open an Account for you or limit the number of Accounts that you hold.
- Restrictions on Prohibited Uses. You may not use your Account to engage in the following categories of activity. The specific types of use listed below are representative, but not exhaustive. By opening an Account, you confirm that you will not use your Account to do any of the following:
- Unlawful activity. Activity that would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions programs administered in the countries where Dreamship conducts business, including, without limitation, the U.S. Department of Treasury's Office of Foreign Assets Control, or which would involve proceeds of any unlawful activity; publish, distribute or disseminate any unlawful material or information.
- Abusive activity. Actions that impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to the Services that contains viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to the Services, other Accounts, computer systems or networks connected to the Services, through password mining or any other means; use of Account information of another party to access or use the Services, except in the case of specific merchants and/or applications which are specifically authorized by a user to access such user's Account and information; or transferring your account access or rights to your account to a third party, unless by operation of law or with the express permission of Dreamship.
- Abusing other users. Interfere with another individual's or entity's access to or use of any Services; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information from the Services about others, including without limitation email addresses, without proper consent.
- Fraudulent or misleading content. Activity that operates to defraud Dreamship, Dreamship users, or any other person; provide any false, inaccurate, or misleading information to Dreamship or third parties, including, without limitation, false, inaccurate, or misleading information about any products included in the Services.
- Gambling. Lotteries; bidding fee auctions; odds making; internet gaming; contests, sweepstakes; games of chance.
- Intellectual property infringement. Engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including, without limitation, sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of Dreamship intellectual property, name, or logo, including use of Dreamship trade or service marks, without express consent from Dreamship or in a manner that otherwise harms Dreamship or the Dreamship brand; any action that implies an untrue endorsement by or affiliation with Dreamship. If you are an intellectual property owner who believes a user of our services is infringing your intellectual property rights, please see Section 6.
- Application to Ad Platform Accounts. You acknowledge and agree that the restrictions in this Section 1, in addition to applying to Accounts, apply to accounts created by Dreamship on your behalf on an Ad Platform (such accounts, "Ad Platform Accounts") as set forth in Section 4.
- License. We grant you a limited, nonexclusive, nontransferable, nonsublicensable license, subject to the terms of this Agreement, to access and use the Services and related content, materials and information provided by Dreamship (collectively, the "Dreamship Content") solely for approved purposes as permitted by Dreamship from time to time. Any other use of the Services or the Dreamship Content is expressly prohibited. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Dreamship Content, in whole or in part. All intellectual property rights, including copyrights, patents, trademarks and trade secrets, in the Services, including, without limitation, "dreamship.com" and all logos related to the Services or displayed on the Dreamship Site, are owned by Dreamship or its licensors. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in this Section 2(a). Dreamship and its licensors expressly reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
- Disclaimers. Although Dreamship intends to provide accurate and timely information on the Services, the Services (including, without limitation, the Dreamship Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. THE SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND DREAMSHIP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. DREAMSHIP MAKES NO WARRANTY THAT THE DREAMSHIP SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE DREAMSHIP SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
- Third-Party Materials. The Services may contain links to third-party websites and services and/or display advertisements for third parties (collectively, "Third-Party Materials"). Such Third-Party Materials are not under Dreamship's control, and Dreamship is not responsible for any Third-Party Materials. Dreamship provides access to this Third-Party Materials only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Materials. You use all Third-Party Materials at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Materials, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Materials.
- Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services; (b) you will not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you will not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
3. Payment Terms.
To the extent the Services or any features or functionalities thereof is made available to you for a fee, you are required as a condition of your use of the Services to pay to Dreamship fees applicable to the features and functionalities you use as part of the Services (“Service Fees”), as well as any other applicable fees including but not limited to those fees charged by Supplier or other third parties that provide goods or services to you as part of the Services (“Additional Fees”). Service Fees and Additional Fees are collectively referred to as “Fees”. All Fees are exclusive of applicable federal, provincial, state, local or other governmental taxes unless otherwise indicated.
In order to pay Fees, you must enter a valid payment method such as PayPal, credit card, or other payment method indicated at the time you create your Account (“Payment Method”) and keep the Payment Method valid at all times. You acknowledge and agree that Dreamship may charge the Fees to the Payment Method you provide immediately upon your request or receipt of the applicable Services and continue charging applicable Fees on a rolling basis until the Services are terminated and any outstanding Fees you owe are paid in full. Dreamship reserves the right to withhold the provision of Services to you until your payment of the Fees is fully settled in Dreamship’s accounts. You acknowledge that you may be responsible for additional fees beyond the Service Fees and Additional Fees, such as processing fees charged to you by payments providers you use outside of our Services (such as PayPal, Shopify, Facebook, or other service providers), as well as all taxes associated with your use of the Services other than U.S.-based taxes assessed directly to Dreamship independent of any transaction with you.
Dreamship reserves the right to pause or cancel payments at any time.
- Pricing. All Fees are as posted at the time you request the applicable Services unless otherwise indicated on the Dreamship Site or otherwise indicated by Dreamship to you in writing.
- Refunds. Dreamship does not provide refunds for Fees paid.
- Prepayment. Dreamship offers the option for you pay in advance (“Pre-Payment”) in exchange for certain benefits to your account, such as discounts, Credits (defined below), or similar benefits. Dreamship may accept or reject Pre-Payment at its sole discretion, and may condition acceptance of Pre-Payment upon your acceptance of additional terms and conditions which may be modified by Dreamship at any time upon written notice to you. If Dreamship reasonably believes that you are violating these Terms or the intellectual property rights or other rights of Dreamship, Suppliers, or third-parties, Dreamship reserves the right to charge your Payment Method or use Pre-Payment amounts in order to cover any fees, charges, or other losses incurred by, or that could potentially be incurred by, Dreamship as a result of your actions or omissions.
- Credits. Dreamship may grant your Account credit that can be used solely to pay Fees (“Credits”) in accordance with these Terms. You acknowledge and agree that Credit is granted by Dreamship’s sole discretion, does not reflect actual amounts paid (either to satisfy Fees owed or as Pre-Payment), and the terms and conditions governing the redemption of Credit can be modified at any time and for any reason. Dreamship reserves the right to reduce Credit in an amount equal to any outstanding balances associated with your Account in order to satisfy amounts you owe to Dreamship.
4. Ad Platform Terms.
As part of the Services, Dreamship may provide you access to an Ad Platform, including, without limitation, by way of creating an Ad Platform Account or multiple Ad Platform Accounts (the "Ad Platform Services"). Your use of the Ad Platform Services is governed in all aspects by these Terms, including, without limitation, this Section 4.
- Payment to Dreamship: Advances and Monthly Payments.You understand that you are required to pay Dreamship in exchange for your use of the Ad Platform Services (any such payment, a "Payment"). Payments are made as follows: (i) when you sign up for the Ad Platform Services, Dreamship collects an up-front advance payment (the "Advance") and (ii) at the beginning of each month, Dreamship draws and retains from your Advance an amount equal to a percentage of the amount of money you plan to spend advertising your products and/or services on the applicable Ad Platform in the applicable month, which will be communicated to you and may be modified from time to time in Dreamship's sole discretion (the "Monthly Payment"). Dreamship will deduct the Monthly Payment from your Advance until your Advance would be insufficient to cover the next upcoming Monthly Payment, at which point Dreamship reserves the right to request and collect another Payment from you (and treat it as a second Advance) and reserves the right to suspend or terminate your access to the Ad Platform Services during the time such requested Payment remains unpaid. All payments must be made in U.S. dollars or any other currency as Dreamship and you may agree. Except as set forth in Section 4(b) below, all Advances and Monthly Payments are non-refundable.
- Payment to Dreamship: Deposits. In addition to Advances and Monthly Payments, Dreamship may collect a one-time, up-front deposit in the amount of $10,000 (a "Deposit"), which Dreamship will hold for the duration of your use of the Ad Platform Services. IN THE EVENT THAT DREAMSHIP TERMINATES YOUR ACCESS TO THE AD PLATFORM SERVICES BECAUSE YOUR CONTENT (AS DEFINED BELOW) OR AD PLATFORM ACCOUNT IS FLAGGED BY, OR REMOVED FROM, AN AD PLATFORM, OR IF DREAMSHIP OTHERWISE INCURS ANY LIABILITY TO AN AD PLATFORM BECAUSE OF YOUR CONTENT OR YOUR AD PLATFORM ACCOUNT, DREAMSHIP MAY RETAIN SOME OR ALL OF YOUR DEPOSIT AS LIQUIDATED DAMAGES. Please read Section 4(g) carefully, as it contains the terms for Dreamship's retention of your Deposit as liquidated damages.
- Unspent Payments and/or Credits; Underpayments. Depending on your use of the Ad Platform Services, you may receive a portion of your Advance back or certain credits, each as set forth in this Section 4(b).
- If you cease using the Ad Platform Services (whether at your election, an Ad Platform removes you from the Ad Platform and Dreamship then terminates your use of the Ad Platform Services, or Dreamship terminates your use of the Ad Platform Services for any other reason in its sole discretion, including, without limitation, for your violation of these Terms), then Dreamship will credit back to you any remaining amounts left in your Advance as of the date your access to the Ad Platform Services is terminated; provided, that Dreamship may retain your Deposit as liquidated damages in accordance with Section 4(g) below
- If you achieve certain volume thresholds with respect to use of the Ad Platform Services (such thresholds to be communicated to you by Dreamship), Dreamship may issue you a credit for use of the Ad Platform Services in an amount communicated to you that may be modified from time to time in Dreamship's sole discretion. For clarity, this credit will have no cash value, and will be redeemable for future use of the Ad Platform Services only.
- Collecting your Payment. All Monthly Payments will be enabled by Dreamship using the preferred payment method designated in your Account. You are solely responsible for maintaining and/or updating the payment information on your Account and if Dreamship is unable to withdraw a Payment from you for any reason, it will suspend your access to the Ad Platform Services until such Payment can be withdrawn. Any failure by you to provide Dreamship with accurate payment information, or to update any changes to your payment information, may result in suspension or termination of your access to the Ad Platform Services.
- License to Your Content; Ownership of Data.
- You grant to Dreamship a nonexclusive, royalty-free license to access, use, copy, modify, create derivative works of, distribute, publicly display, publicly perform and otherwise exploit in any manner any content, materials and information provided by you to Dreamship in connection with your use of the Services (including, without limitation, the Ad Platform Services) (collectively, "Your Content") solely for purposes of Dreamship's facilitation of the Ad Platform Services. You represent and warrant that: (i) you either are the sole and exclusive owner of Your Content or you have all rights, licenses, consents and releases necessary to grant Dreamship the license to Your Content as set forth herein; (ii) neither Your Content, nor your submission, uploading, publishing, or otherwise making available Your Content, nor Dreamship's use of Your Content as permitted herein will infringe, misappropriate, or otherwise violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree that Your Content will not be false, misleading, inaccurate, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive or inappropriate as determined in Dreamship's sole discretion.
- Dreamship uses data generated from your use of the Ad Platform Services, including, without limitation, any data generated from use of Your Content, to improve the Ad Platform Services. Any such data and information constitutes "Dreamship Content" as defined in Section 2(a) and therefore Dreamship owns all right, title and interest in and to such data and information, and such data and information is governed in all respects by these Terms.
- Review of, and Flagging, Your Content. Dreamship reserves the right to review and, in Dreamship's sole discretion, approve or reject Your Content before submitting it to an Ad Platform. Notwithstanding the foregoing, you acknowledge and agree that Your Content is listed on an Ad Platform (i.e., a service controlled by a third party) and is subject to the applicable Ad Platform's terms and policies, including, without limitation, the applicable Ad Platform's privacy and data gathering practices. You further acknowledge and agree that Your Content or any Ad Platform Accounts may be flagged by an Ad Platform and removed from such Ad Platform. Dreamship may, without any liability to you, suspend or terminate its delivery of the Ad Platform Services to you for any reason in its sole discretion, including, without limitation, in response to Your Content or any such Ad Platform Accounts being flagged by an Ad Platform in any manner. You are fully responsible for Your Content and any Ad Platform Accounts and Dreamship will incur no liability to you for the foregoing.
- Termination; Liquidated Damages.IF DREAMSHIP TERMINATES YOUR ACCESS TO THE AD PLATFORM SERVICES DUE TO YOUR CONTENT OR YOUR AD PLATFORM ACCOUNT BEING FLAGGED BY, OR REMOVED FROM, AN AD PLATFORM, OR IF DREAMSHIP OTHERWISE INCURS ANY LIABILITY TO AN AD PLATFORM AS A RESULT OF YOUR CONTENT OR YOUR AD PLATFORM ACCOUNT, THEN DREAMSHIP RESERVES THE RIGHT TO RETAIN AS LIQUIDATED DAMAGES SOME OR ALL OF YOUR DEPOSIT. THE PARTIES AGREE THAT THE LIQUIDATED DAMAGES CLAUSE HEREIN IS INTENDED TO COVER REPUTATIONAL AND OTHER LOSSES INCURRED BY DREAMSHIP DUE TO YOUR ACTIONS AND THAT QUANTIFYING LOSSES FROM YOUR ACTIONS IS INHERENTLY DIFFICULT INSOFAR AS YOUR ACTIONS MAY IMPACT DREAMSHIP'S REPUTATION. THE PARTIES FURTHER STIPULATE THAT THE AGREED SUM IS NOT A PENALTY, BUT RATHER A REASONABLE MEASURE OF DAMAGES, BASED UPON THE PARTIES' EXPERIENCE IN THE INDUSTRY AND GIVEN THE NATURE OF THE LOSSES THAT MAY RESULT FROM YOUR ACTIONS. IN THE EVENT THAT THE LIQUIDATED DAMAGES CLAUSE SET FORTH HEREIN IS FOUND TO BE PENAL IN NATURE BECAUSE IT GIVES THE AGGRIEVED PARTY THE OPTION TO INVOKE IT, THE PARTIES AGREE THAT THE LIQUIDATED DAMAGES PROVISION WILL APPLY AND THE OPTION WILL BE NULL AND VOID.
- Facebook Ads. As part of the Ad Platform Services, Dreamship may create an Ad Platform Account on Facebook ("Facebook Ad Platform Account"). Any such Facebook Ad Platform Account will be subject to, and governed by, these Terms (including, without limitation, this Section 4 and the terms and conditions related to Accounts and Ad Platform Accounts). Notwithstanding the foregoing, with respect to each Facebook Ad Platform Account, you expressly acknowledge and agree to the following additional terms:
- Any Facebook Ad Platform Account and any of Your Content therein is each governed by Facebook's Advertising Policies (found here: https://www.facebook.com/policies/ads/). Although Dreamship will use commercially reasonable efforts to create your Facebook Ad Platform Account, it is your responsibility to, and you will be solely and entirely liable for the failure to, maintain your Facebook Ad Platform Account in good standing with Facebook. DREAMSHIP WILL BE UNDER NO OBLIGATION TO MAINTAIN YOUR FACEBOOK AD PLATFORM ACCOUNT AND DREAMSHIP EXPRESSLY WAIVES ANY AND ALL LIABILITY WITH RESPECT TO YOUR FACEBOOK AD PLATFORM ACCOUNT. THIS MEANS THAT DREAMSHIP WILL HAVE NO LIABILITY TO YOU FOR THE FOLLOWING: (I) DREAMSHIP'S FAILURE TO MAINTAIN AN ACCOUNT WITH, OR OTHERWISE REMAIN IN GOOD STANDING WITH, FACEBOOK; (II) ANY OF YOUR CONTENT DISPLAYED ON FACEBOOK; (III) FACEBOOK REMOVING YOU FROM ITS PLATFORM; OR (IV) ANY OTHER REASON WHATSOEVER.
- No Third-Party Beneficiaries. The Ad Platform Services are not intended to create any third-party beneficiary rights for your or any other third party's benefit. To the extent that Dreamship is required to enter into a contract, agreement, or other understanding with an Ad Platform in order to provide the Ad Platform Services to you, you expressly waive any rights you may have as a third-party beneficiary to such contracts, agreements, or understandings. Accordingly, in no event will the Ad Platform Services (including, without limitation, the creation of any Ad Platform Account) create any third-party beneficiary rights in your (or any other third party's) benefit.
5. Fulfillment Terms.
As part of the Services, Dreamship may provide you access to certain product fulfillment services through which you can place orders for products supplied by third parties (such third parties, "Suppliers", and such Suppliers' products, "Third-Party Products") and Dreamship will provide fulfillment services with respect to such Third-Party Products (collectively, the "Fulfillment Services") as set forth on the Dreamship Site. Your use of the Fulfillment Services is governed in all aspects by these Terms, including, without limitation, this Section 5.
- Payment. In exchange for your use of the Fulfillment Services, you will be charged for the cost of the Third-Party Product, any shipping costs and any other transaction fees communicated to you (collectively, "Product Payments"). All Product Payments will be enabled by Dreamship using the preferred payment method designated in your Account. You are solely responsible for maintaining and/or updating the payment information on your Account and if Dreamship or the applicable Supplier is unable to withdraw a Product Payment from you for any reason, then the Third-Party Product will not be fulfilled (nor will you be able to otherwise use the Fulfillment Services) until such payment information is updated, accurate and complete. Any failure by you to provide Dreamship with accurate payment information, or to update any changes to your payment information, may result in suspension or termination of your access to the Fulfillment Services.
- Supplier Availability. You acknowledge and agree that Suppliers have no obligation to fulfill orders that you make and that at any time, a Supplier may choose not to work with you for any reason or may be otherwise unavailable. When such a situation occurs, you will be informed that the applicable Supplier is unavailable. Dreamship will incur no liability to you for any Supplier actions or inactions, including, without limitation, a Supplier's decision not to work with you or a Supplier's unavailability for any reason.
- Product Availability. All Third-Party Products are subject to the applicable Supplier's inventory and availability. A Supplier's processing, shipping and delivery timeframes will be communicated to you, either on the Dreamship Site or through another method. If a Third-Party Product is unavailable, then Dreamship will use commercially reasonable efforts to remove it (or cause it to be removed) from the Fulfillment Services; however, Dreamship will have no liability to you if any Third-Party Product is unavailable for any reason whatsoever, including, without limitation, due to Dreamship's failure to remove it from the Fulfillment Services or any other failure to communicate its status to you.
- Returns; Damaged or Defective Products. All returns and terms with respect to damaged or defective products are subject to the applicable Supplier's return and refund policy. Please review the applicable Supplier's return and refund policy for more information. Because such terms and the Supplier's terms, and not Dreamship's terms, Dreamship will incur no liability to you for any such terms, including, without limitation, a Supplier's failure to honor their terms.
6. Intellectual Property Policy; IP Checker;
Dreamship respects the intellectual property rights of artists, inventors, and creators. These Terms impose important requirements on users to protect intellectual property rights, and we take violations of intellectual property rights on our Services very seriously.
- Intellectual Property Policy. Certain services provided by Dreamship allow you, Suppliers, and other users to upload images or similar content (“Third-Party Content”), connect with Suppliers who may promote or supply Third-Party Products containing Third-Party Content, and otherwise enable users to engage in commercial activity involving Third-Party Content. You, Suppliers and other users of the Services are not employees, agents, or representatives of Dreamship and are not acting under the direction or instruction of Dreamship. Dreamship is not responsible for ensuring that users of the Services have all necessary rights to Third-Party Content that they use in connection with the Services and that they are not using the Services in a way that violates any third party’s rights. Dreamship reserves the right to remove any Third-Party Content, delist or remove any Third-Party Products, remove Your Content, terminate your Account or your access to the Services, and take any other legally required or reasonably necessary action if we determine in our sole discretion that you violate intellectual property rights or these Terms.
- IP Checker. Dreamship may provide access to certain software that analyzes Third-Party Content against a database of images, marks, materials, and other content for purposes of providing analytics and other information (“IP Checker”). Dreamship does not and cannot offer or provide legal advice or make legal determinations with respect to Third-Party Content, including without limitation advice or determinations as to whether Third-Party Content analyzed with IP Checker infringes the intellectual property rights of a third party. Dreamship disclaims all liability with respect to the accuracy of the analytics or other information provided through IP Checker, and Dreamship is not liable for any action or inaction taken by you, Suppliers or any third-party (including without limitation Dreamship’s service providers or affiliated platforms) as a result of or in reliance on analytics or other information provided through IP Checker.
- DMCA and Notices of Intellectual Property Infringement. When Dreamship receives proper notice of intellectual property infringement, Dreamship will endeavor to respond promptly and, if required to protect intellectual property rights or otherwise by law, remove or disable access to the allegedly infringing material. Dreamship will make a reasonable attempt to contact the user who uploaded or provided the allegedly infringing material, provide information about the notice and removal (including the name and email address of the reporting party(, and provide information about how to submit a counter notice (if applicable in the case of alleged copyright infringement). Dreamship may request additional information before processing a notice, such as identity verification of the reporting party and documentation confirming that the reporting party has the claimed legal rights with respect to the applicable intellectual property. Dreamship reserves all rights under applicable law to reject notices or counter notices that contain information that we reasonably believe to be false, fraudulent, incomplete, inaccurate, or otherwise submitted in bad faith.
Submitting a Take-Down Notice or Counter Notice. Dreamship will process and investigate all valid and properly submitted notices of intellectual property infringement as required by applicable law, including without limitation the Digital Millenium Copyright Act (DMCA). Upon receipt of a valid and properly submitted notice under this Section 5(d), Dreamship will take appropriate actions as required by the DMCA or applicable law, including as necessary the expeditious removal of any material claimed to be infringing or claimed to be the subject of infringing activity. We will take commercially reasonable steps to notify the responsible party that we have removed material uploaded or provided by that party.
If you are a copyright, trademark, or intellectual property owner and you have a good faith belief that any Third-Party Content or other materials infringe your rights, you may submit a notification by emailing [email protected] and providing (i) identification of the material claimed to have been infringed, (ii) information reasonably sufficient to permit Dreamship to locate the material, (iii) your contact information, (iv) a statement that you have a good faith belief that use of the material that is claimed to be infringing violates your intellectual property rights, that such use is not authorized by you or anyone else able to provide authorization or otherwise under the law (including without limitation under the doctrine of fair use), and (v) a statement made under penalty of perjury that the information in your notice is accurate and that you are the intellectual property owner or authorized to act on behalf of the intellectual property owner for purposes of submitting notice to Dreamship. You acknowledge that failure to follow the process described in this Section 5(d) may result in Dreamship deeming your notice not valid.
If you are the recipient of a copyright infringement notice under applicable law and you have a good faith belief that you received that copyright infringement notice in error, you may submit a counter notice by emailing [email protected] and providing (i) identification of the material that has been removed, (ii) information reasonably sufficient to permit Dreamship to locate where the material was located as part of the Services, (iii) your contact information, (iv) a statement made under penalty of perjury that you have a good faith belief that the material was removed as a result of error, and (v) a statement that you consent to the jurisdiction of the federal district court in the jurisdiction in which you may be found and that you will accept service of process from the person who provided the initial take-down notice relating to the applicable material. If within ten (10) business days of our receipt of your counter notice, the party who submitted the initial take-down notice does not provide us notice of an action in a court of competent jurisdiction alleging infringement of intellectual property rights, the material described in the counter notice may be restored by Dreamship or uploaded again by you. If you have any questions about the above described procedures, please consult an attorney.
7. Indemnity; Limitation of Liability.
- Indemnity. You agree to indemnify and hold Dreamship, its affiliates, and each of its and their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys' fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of these Terms or your violation of any law, rule or regulation, or the rights of any third party.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL DREAMSHIP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICES, LOSS OF SERVICE, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, ANY LOSS OR CORRUPTION OF DATA, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF DREAMSHIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, DREAMSHIP'S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- Disclaimer of Warranties. Please read these disclaimers carefully, as they describe disclaimers of warranties applicable to the Services as a whole as well as specific services, including the Ad Platform Services, Fulfillment Services, and IP Checker.
THE SERVICES (INCLUDING WITHOUT LIMITATION THE AD PLATFORM AND AD PLATFORM SERVICES, FULFILLMENT SERVICES, AND IP CHECKER) ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND DREAMSHIP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. DREAMSHIP MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE DREAMSHIP SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. DREAMSHIP EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR YOUR USE OF THE FULFILLMENT SERVICES OR THE UP CHECKER, INCLUDING, WITHOUT LIMITATION, YOUR PURCHASE AND USE OF THE THIRD-PARTY PRODUCTS, INCLUDING, WITHOUT LIMITATION, THAT THE THIRD-PARTY PRODUCTS WILL MEET THEIR DESCRIPTION OR IMAGERY ON THE DREAMSHIP SITE, THAT SUCH THIRD-PARTY PRODUCTS WILL BE SAFE OR EFFECTIVE, THAT SUCH THIRD-PARTY PRODUCTS WILL CONFORM TO ANY VERBAL OR WRITTEN WARRANTIES OR GUARANTEES PROVIDED BY THE SUPPLIER (WHETHER THOSE WARRANTIES ARE EXPRESS, IMPLIED, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE), OR THAY SUCH THIRD-PARTY PRODUCTS DO OR DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD-PARTY. WITHOUT LIMITING THE FOREGOING, DREAMSHIP EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO YOU BASED ON A THIRD-PARTY PRODUCT'S DEFECTS, INCLUDING, WITHOUT LIMITATION, THAT SUCH THIRD PARTY PRODUCTS CAUSED BODILY INJURY OR ANY PRODUCTS LIABILITY. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, DREAMSHIP MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO, AND EXPLICITLY DISCLAIMS THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE AD PLATFORM SERVICES AND ANY DATA AND/OR INFORMATION INCLUDED ON ANY AD PLATFORM OR AD PLATFORM SERVICES, AND WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ERRORS, OMISSIONS, OR OTHER DEFECTS, DELAYS, OR INTERRUPTIONS ON ANY AD PLATFORM OR AD PLATFORM SERVICES AND ANY SUCH DATA AND/OR INFORMATION INCLUDED THEREIN OR FOR ANY DAMAGES RELATED TO YOUR USE OF ANY AD PLATFORM OR AD PLATFORM SERVICES, AND DREAMSHIP WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY AD PLATFORM SERVICES, YOUR CONTENT, OR ANY AD PLATFORM ACCOUNTS. FURTHER, DREAMSHIP EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR DREAMSHIP'S FAILURE TO CREATE OR MAINTAIN AN AD PLATFORM ACCOUNT FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FOR DREAMSHIP'S FAILURE TO MAINTAIN AN ACCOUNT WITH, OR OTHERWISE REMAIN IN GOOD STANDING WITH, AN AD ACCOUNT PLATFORM).
8. Arbitration Agreement.
- Agreement to Arbitrate. You and Dreamship agree that any dispute, claim, or controversy between you and Dreamship arising in connection with or relating in any way to these Terms or to your relationship with Dreamship as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and Dreamship further agree that the arbitrator will have the exclusive power to rule on any disputes relating to the interpretation, applicability, enforceability, existence, scope or validity of this agreement to arbitrate (this "Arbitration Agreement") or to the arbitrability of any claim or counterclaim, including whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This Arbitration Agreement will survive termination of these Terms.
- Class Action Waiver. YOU AND DREAMSHIP AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Dreamship otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
- Waiver of Jury Trial; Certain Exceptions. You acknowledge and agree that you and Dreamship are each waiving the right to a trial by jury the right to participate as a plaintiff or class member in any purported class action or representative proceeding. Notwithstanding the foregoing, you and Dreamship each agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of their rights to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator.
- Procedure; Rules; Location. Either party may initiate arbitration proceedings by providing the other party with a written Demand for Arbitration as specified in the AAA Rules (defined in the following sentence). The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The arbitration will be conducted in the county or parish in which you reside.
- Fees. Each party will be responsible for payment of its own fees as set forth in the AAA Rules.
- Choice of Law. Notwithstanding any choice of law provision in these Terms, the parties acknowledge and agree that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules will preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue will be resolved under the laws of the State of California.
- Severability. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason: (1) the unenforceable or unlawful provision will be severed from these Terms; (2) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.
- Severability and Waiver. Unless as otherwise stated in these Terms, should any provision of these Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability will not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms, and the application of that provision will be enforced to the extent permitted by law. Any failure by Dreamship or any third-party beneficiary to enforce the Agreements or any provision thereof will not waive Dreamship's or the applicable third-party beneficiary's right to do so.
- Choice of Law. These Terms are governed by the internal laws of the State of California, United States, without regard to its choice or conflicts of laws principles. You and Dreamship agree to the exclusive jurisdiction of the state and federal courts located in San Francisco, California to resolve any dispute, claim, or controversy that relates to or arises in connection with these Terms that is not subject to binding arbitration as set forth in Section 8.
- Assignment. You may not assign these Terms without Dreamship's prior written consent. Dreamship may assign these Terms without your consent to (1) a subsidiary or affiliate of Dreamship, (2) an acquirer of Dreamship's equity, business, or assets, or (3) a successor of Dreamship by merger or operation of law. Any purported assignment in violation of this Section 9(d) will be void.
- Survival. The provisions of Section 2(b), Section 3 through 9 will survive the termination or expiration of these Terms.