Terms and Conditions Between Tex-Mex Merch and Client rev.
Effective Date: Nov 1, 2007
to the Tex-Mex Merch website, which is located at Tex-Mex
Merch.com (the "Website"). This Terms of Service
("TOS") contain the terms and conditions that
govern your use of the Website and the CafePress.com Service
(as defined below). This TOS describes your rights and responsibilities
and what you can expect from the CafePress.com Service.
Use of the Tex-Mex Merch.com Website constitutes your acceptance
of and agreement to this TOS.
Tex-Mex Merch.com reserves the right to add, delete and/or
modify any of the terms and conditions contained in this
TOS, at any time and in its sole discretion, by posting
a change notice or a new agreement on the Tex-Mex Merch.com
Website. In the event of substantive changes to this TOS,
you may be notified by email. If any modification is unacceptable
to you, your only recourse is to not use the Website and
the Tex-Mex Merch.com Service. Your continued use of the
Tex-Mex Merch.com Website following posting of a change
notice or new TOS on the TexMexMerch.com Website will constitute
binding acceptance of the changes.
1. Tex-Mex Merch.com Service.
Tex-Mex Merch.com provides a number of Internet-based services
through the Website (all such services, collectively, the
"Tex-Mex Merch.com Service"). One such service
enables users to create customized products, including without
limitation, merchandise, books, compact discs, VCDs, and
CD-ROMS (collectively, "Products"). Tex-Mex Merch.com
users may create and purchase individual Products for their
own use or sell Products through their own page on the Website
("Shops"). Users who would like to sell Products
through Shops must enter into the Shopkeeper Agreement.
CafePress.com allows all users to browse the Website and
purchase Products from the Shops. Tex-Mex Merch.com may
offer a number of other services on its Website, including
without limitation, message boards, contests, and newsletters,
which may change from time to time.
2. Use of the Web Site and Tex-Mex Merch.com Service.
2.1 Eligibility. Tex-Mex Merch.com will only knowingly provide
the Tex-Mex Merch.com Service to parties that can lawfully
enter into and form contracts under applicable law. If you
are under the age of 18, but at least 13 years of age, you
may use the Tex-Mex Merch.com Service only under the supervision
of a parent or legal guardian who agrees to be bound by
this TOS. The Tex-Mex Merch.com Service is not intended
for children under the age of 13.
2.2 Compliance with TOS and Applicable Law. You must comply
with all of the terms and conditions of this TOS, the applicable
agreements and policies referred to below, and all applicable
laws, regulations and rules when you use the Tex-Mex Merch.com
Service and the Website.
2.3 Your License to Use the Web Site and the Tex-Mex Merch.com
(a) Tex-Mex Merch.com solely and exclusively owns all intellectual
property and other rights, title and interest in and to
the CafePress.com Service and Website, except as expressly
provided for in these TOS. For example and without limitation,
Tex-Mex Merch.com owns the trademarks Tex-Mex Merch.Com,
RubenRamosSuperStore.COM, RubenRamosWebStore.COM & RubenRamosStore.com;
the copyrights in and to the Website, and certain technology
used in providing the Tex-Mex Merch.com Service. You will
not acquire any right, title or interest therein under this
TOS or otherwise to any intellectual property owned by Tex-Mex
(b) Tex-Mex Merch.com grants you a limited revocable license
to access and use the Website and the Tex-Mex Merch.com
Service for its intended purposes, subject to your compliance
with this TOS. This license does not include the right to
collect or use information contained on the Website for
purposes prohibited by Tex-Mex Merch.com; to compete with
CafePress.com; to create derivative works based on the content
of the Website; or download or copy the Website (other than
page caching). If you use the Website in a manner that exceeds
the scope of this license or you breach this TOS, Tex-Mex
Merch.com may revoke the license granted to you.
(c) This Section 2.3 does not pertain to your intellectual
property rights. For information regarding your intellectual
property rights, please see Section 4.3.
2.4 Third-Party Services. Tex-Mex Merch.com may use third
parties to provide certain services accessible through the
Website. Tex-Mex Merch.com does not control those third
parties or their services, and you agree that Tex-Mex Merch.com
will not be liable to you in any way for your use of such
services. These third parties may have their own terms of
use and other policies. You must comply with such terms
and policies as well as this TOS when you use those services.
If any such terms or policies conflict with Tex-Mex Merch.com's
TOS, agreements or policies, you must comply with Tex-Mex
Merch.com's TOS, agreements or policies, as applicable.
3. General Rules.
3.1 Prohibited Use. You may only use the Tex-Mex Merch.com
Service as expressly permitted by Tex-Mex Merch.com. You
may not cause harm to the Website or the Tex-Mex Merch.com
Service. Specifically, but not by way of limitation, you
may not: (i) interfere with the Tex-Mex Merch.com Service
by using viruses or any other programs or technology designed
to disrupt or damage any software or hardware; (ii) modify,
create derivative works from, reverse engineer, decompile
or disassemble any technology used to provide the Tex-Mex
Merch.com Service; (iii) use a robot, spider or other device
or process to monitor the activity on or copy pages from
the Website, except in the operation or use of an internet
"search engine", hit counters or similar technology;
(iv) collect electronic mail addresses or other information
from third parties by using the Tex-Mex Merch.com Service;
(v) impersonate another person or entity; (vi) use any meta
tags, search terms, key terms, or the like that contain
Tex-Mex Merch.com's name or trademarks; (vii) engage in
any activity that interferes with another user's ability
to use or enjoy the Tex-Mex Merch.com Service; or (viii)
assist or encourage any third party in engaging in any activity
prohibited by this TOS.
to CafePress.com's collection, use and disclosure of your
3.3 Ordering Policies. If If you purchase Products, you
agree to do so in accordance with Tex-Mex Merch.com's Ordering
Policy and instructions on the Website. Title to the Products
you purchase passes to you when the Products are delivered
to the common carrier.
4. Create and Buy General Rules and License.
4.1 Description. As part of the Tex-Mex Merch.com Service,
Tex-Mex Merch.com offers a service (the "Create &
Buy Service") that allows you to upload images, video,
audio, data, and other content (collectively, "Content")
to the Website to create, produce and purchase Products
featuring the uploaded Content for your own use.
4.2 Delivery of Content. You will upload or deliver to Tex-Mex
Merch.com all Content that you want to use with the Create
& Buy Service in accordance with the applicable instructions
on the Website and the Content Usage Policy. Tex-Mex Merch.com
may, in its sole and exclusive discretion, determine whether
any Content complies with such instructions and is satisfactory
for use with the Create & Buy Service.
4.3 Licensing Your Content to Tex-Mex Merch.com. You will
retain ownership of the Content that you upload to the Website.
You hereby grant to Tex-Mex Merch.com a royalty-free, worldwide,
transferable, nonexclusive, right and license to use such
Content, in all media existing now or created in the future,
as Tex-Mex Merch.com deems necessary to enable you to use
the Create & Buy Service to create, produce and purchase
Products. Tex-Mex Merch.com may sublicense the rights that
you grant it in this Section to a third party subcontractor
only for purposes of providing the Tex-Mex Merch.com Service,
processing your order, and producing and shipping your Products.
5. Reservation of Rights.
5.1 Monitoring. Tex-Mex Merch.com reserves the right, but
does not assume the obligation, to monitor transactions
and communications that occur through the Website. If Tex-Mex
Merch.com determines, in its sole and absolute discretion,
that you or another Tex-Mex Merch.com user will breach a
term or condition of this TOS or that such transaction or
communication is inappropriate, Tex-Mex Merch.com may cancel
such transaction or take any other action to restrict access
to or the availability of any material that may be considered
objectionable, without any liability to you or any third
5.2 Modification of the Service. Tex-Mex Merch.com reserves
the right to modify the organization, structure or "look
and feel" of the Tex-Mex Merch.com Service or the Website,
and may change, suspend, or discontinue any aspect of the
CafePress.com Service at any time without any liability
to you or any third party. Tex-Mex Merch.com shall have
complete discretion over the features, functions, prices
and other terms and conditions on which the Tex-Mex Merch.com
Service is offered to Tex-Mex Merch.com users.
When you submit questions, comments, suggestions, ideas,
message board postings, material submitted via web forms,
contest entries, communications or any other information
("Submissions"), you grant Tex-Mex Merch.com permission
to use such Submissions for marketing and other promotional
purposes, including the right to sublicense. You agree that
Tex-Mex Merch.com will have no obligation to keep any Submissions
confidential. You will not bring a claim against Tex-Mex
Merch.com based on "moral rights" or the likes
arising from Tex-Mex Merch.com's use of a Submission. This
Section does not apply to your Content that you use in connection
with the Create & Buy Service or Shopkeeper Service.
7. Representations and Warranties.
7.1 Mutual Representations and Warranties. You represent
and warrant to Tex-Mex Merch.com represents and warrants
to you: (i) that you or it has the full power and authority
to enter into and perform under this TOS, (ii) the execution
and performance of your or its obligations under this TOS
does not constitute a breach of or conflict with any other
agreement or arrangement by which you or it is bound, and
(iii) this TOS is a legal, valid and binding obligation
of the party entering into this TOS, enforceable in accordance
with its terms and conditions.
7.2 By You. You represent and warrant to Tex-Mex Merch.com
that, in your use of the CafePress.com Service, you: (i)
will not infringe the copyright, trademark, patent, trade
secret, right of privacy, right of publicity or other legal
right of any third party, and (ii) will comply with all
applicable laws, rules, and regulations. You further represent
and warrant to Tex-Mex Merch.com that: (i) there are no
claims, demands or any form of litigation pending, or to
the best of your knowledge, threatened with respect to any
of your Content; (ii) Tex-Mex Merch.com will not be required
to make any payments to any third party in connection with
its use of your Content, except for the expenses that Tex-Mex
Merch.com incurs in providing the Tex-Mex Merch.com Service;
(iii) the use of any instructions, formulae, recommendations,
or the like contained in your Content will not cause injury
to any third party; and (iv) your Content does not contain
viruses or any other programs or technology designed to
disrupt or damage any software or hardware.
8. Disclaimers and Exclusions.
DISCLAIMER OF WARRANTIES. Tex-Mex Merch.com PROVIDES THE
WEBSITE AND Tex-Mex Merch.COM SERVICE ON AN "AS IS"
AND "AS AVAILABLE" BASIS. Tex-Mex Merch.COM DOES
NOT REPRESENT OR WARRANT THAT THE WEBSITE, Tex-Mex Merch.COM
SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL
BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR
REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION
OR WITH THE HARDWARE OR SOFTWARE YOU USE. Tex-Mex Merch.COM
MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE
TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR
A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
9. Limitation of Liability.
LIMITATION OF LIABILITY. Tex-Mex Merch.COM WILL NOT BE LIABLE
TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES
RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL)
ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF
THE Tex-Mex Merch.COM SERVICE OR THIS TOS, BASED ON ANY
CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS
AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR
INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE
LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED
THE GREATER OF (i) THE AMOUNT PAID BY CAFEPRESS.COM TO YOU
DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT
GIVES RISE TO SUCH LIABILITY OR (ii) $100.
You must indemnify and hold Tex-Mex Merch.com and its employees,
representatives, agents, affiliates, directors, officers,
managers and shareholders (the "Parties") harmless
from any damage, loss, or expense (including without limitation,
attorneys' fees and costs) incurred in connection with any
third-party claim, demand or action ("Claim")
brought against any of the Parties alleging that you have
breached any provision of this TOS through any act or omission.
If you have to indemnify CafePress.com under this Section,
Tex-Mex Merch.com will have the right to control the defense,
settlement, and resolution of any Claim at your sole expense.
You may not settle or otherwise resolve any Claim without
Tex-Mex Merch.com's express written permission.
11.1 Termination. In its sole discretion, with or without
notice to you, CafePress.com may: (i) suspend, limit your
access to or terminate your use of the Website and/or the
Tex-Mex Merch.com Service, (ii) suspend, limit your access
to or terminate your account, (iii) remove any of your Content
from Tex-Mex Merch.com's servers and directories and (iv)
prohibit you from using the Tex-Mex Merch.com Service and/or
11.2 Survival. Notwithstanding Section 11.1 above, this
TOS will survive indefinitely unless and until CafePress.com
chooses to terminate this TOS.
11.3 Effect of Termination. If you or Tex-Mex Merch.com
terminates your use of the Website or the Tex-Mex Merch.com
Service, Tex-Mex Merch.com may delete any Content or other
materials relating to your use of the Tex-Mex Merch.com
Service on Tex-Mex Merch.com's servers or otherwise in its
possession and Tex-Mex Merch.com will have no liability
to you or any third party for doing so.
All notices required or permitted to be given under these
TOS will be in writing and delivered to the other party
by any of the following methods: (i) U.S. mail, (ii) overnight
courier, or (iii) electronic mail. If you give notice to
Tex-Mex Merch.com, you must use the following addresses:
email@example.com. If Tex-Mex Merch.com provides notice
to you, Tex-Mex Merch.com will use the contact information
provided by you to Tex-Mex Merch.com. All notices will be
deemed received as follows: (i) if by delivery by U.S. mail,
seven (7) business days after dispatch, (ii) if by overnight
courier, on the date receipt is confirmed by such courier
service, or (iii) if by electronic mail, 24 hours after
the message was sent, if no "system error" or
other notice of non-delivery is generated. If applicable
law requires that a given communication be "in writing,"
you agree that email communication will satisfy this requirement.
13. Dispute Resolution.
All disputes arising out of, relating to or connected with
these TOS or your use of any part of the Tex-Mex Merch.com
Service will be exclusively resolved under confidential
binding arbitration held in Austin, Texas, before and in
accordance with the Rules of the American Arbitration Association,
by a sole arbitrator applying Texas law (without regard
for conflicts of law principles). The arbitrator's award
will be binding and may be entered as a judgment in any
court of competent jurisdiction. Any action to enforce an
arbitrator's award will be brought in a federal or state
court located in Austin, Texas. Each party hereby irrevocably
submits to the personal jurisdiction of the Federal and
Texas State courts in Travis County. Notwithstanding anything
to the contrary in this Section 13, Tex-Mex Merch.com may
seek equitable relief, including, without limitation, injunctive
relief and specific performance, without the requirement
of posting a bond or other security or proving money damages
are insufficient, from a court of competent jurisdiction.
These TOS will be binding upon each party hereto and its
successors and permitted assigns, and governed by and construed
in accordance with the laws of the State of Texas without
reference to conflict of law principles. This TOS is not
assignable or transferable by you without the prior written
consent of Tex-Mex Merch.com. This TOS (including all of
the policies and other Agreements described in this TOS,
which are incorporated herein by this reference) contain
the entire understanding of the parties regarding its subject
matter, and supersedes all prior and contemporaneous agreements
and understandings between the parties regarding its subject
matter. No failure or delay by a party in exercising any
right, power or privilege under this TOS will operate as
a waiver thereof, nor will any single or partial exercise
of any right, power or privilege preclude any other or further
exercise thereof or the exercise of any other such right,
power, or privilege. You and Tex-Mex Merch.com are independent
contractors, and no agency, partnership, joint venture,
or employee-employer relationship is intended or created
by this TOS. The invalidity or unenforceability of any provision
of this TOS will not affect the validity or enforceability
of any other provision of this TOS, all of which will remain
in full force and effect.