Terms of Service
Last Updated: 12/11/2019
[Sorry friends, the Darn Lawyers made us do it….]
Welcome to the Darn Pottery website. Please read these Terms of Service (the “Terms”) and our Privacy Notice carefully because they govern your use of our Site and our online store and information services accessible via our Site. To make these Terms easier to read, the Site, and our related online and offline offerings are collectively called the “Services.”
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING TO RESOLVE ANY DISPUTE BETWEEN YOU AND DARN POTTERY THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT.
1. Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. You expressly agree that your use of, or inability to use, the service is at your sole risk.
2. Privacy Notice. Please refer to our Privacy Notice for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Notice.
3. Changes to Terms or Services. We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know by posting the updated Terms on the Site. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then stop using the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion. Any ambiguities in the interpretation of these Terms of Service shall not be construed against us. If you have to blame anyone, blame the hedgehogs. They will deny any responsibility.
4. Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes.
Who May Use the Services?
(a) Eligibility. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Darn Pottery and are not barred from using the Services under applicable law. Or that you have given us your consent to allow any of your minor dependents to use this site. Please do not let your cats use this site. Cats are liars and cannot be trusted with anything.
(b) Registration and Your Information. If you want to use certain features of the Services you’ll have to create an account (“Account”). You can do this via the Site or, if and when we make this option available to you, through your account with certain third-party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
(c) Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone. You’re responsible for all activities that occur under your Account, whether or not you know about them.
5. Feedback. We welcome your darn feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, transferable, worldwide, perpetual, furry, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose. In other words, if you give the hedgehogs a terrific idea, they might just run with it. If you write us a love letter, we might make it public.
6. One-Time Payment and Subscription Policy. You have the option of making a one-time payment for certain goods or services (“One-Time Payment”) or purchasing a subscription as listed on the Site (“Subscription”) for certain services as listed on the Site. You can also send us presents.
(a) General. Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
(b) Subscriptions. If at a later date we offer and you choose to purchase a Subscription, you will be charged the applicable Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription period and each period of your Subscription thereafter, at the then-current Subscription Fee. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each Subscription period on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. Darn Pottery will send you a reminder prior to each renewal with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Darn Pottery. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
(c) Cancelling Subscription. We reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation must be received by Darn Pottery at least one (1) full calendar day before the end of the then-current Subscription period to cancel your Subscription and avoid a charge for the next Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can log on to your Account page on darnpottery.com or contact our customer service team. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period.
7. Shipping Policy. Please refer to our Shipping Policy for information related to our shipping procedures and policies. You acknowledge and agree that you have read and understood our Shipping Policy.
8. Content Ownership, Responsibility and Removal.
(a) Definitions. For purposes of these Terms: (i) “Content” means text, pottery forms, graphics, images, stories and text, music, software, audio, video, works of authorship or craftsmanship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services (all the stuff we make and post); and (ii) “User Content” means any Content that Account holders or Services users (including you) provide to be made available through the Services.
(b) Our Content Ownership. Darn Pottery exclusively owns all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that everything on the darnpottery.com website is protected by copyright, trademark, and other laws of the United States and foreign countries. Do not steal, borrow, incorporate, alter or otherwise hijack our designs, stories, blog posts, illustrations, products. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
(c) Rights in User Content Granted by You. Darn Pottery does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. By making any User Content available through the Services you hereby grant to Darn Pottery a non-exclusive, very-furry, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services and Content to you and to other Account holders. In other words, if you send us a picture of yourself looking awesome in one of our Darn Tshirts, we may use this picture on our website or in our advertising. We might make you famous, but we won’t make you rich.
(d) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Darn Pottery on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. So, as tempting as it may be, please don’t send us pictures of other people wearing our Darn Tshirts if they didn’t give you approval to do so.
(e) Removal of User Content. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(f) Rights in Content Granted by Darn Pottery. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service, without express written permission by us.
9. General Prohibitions and Darn Pottery Enforcement Rights. You agree NOT TO DO any of the following:
(a) Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances. Be a good citizen. Be kind and careful of other people’s feelings;
(b) Use, display, mirror or frame the Services or any individual element (including but not limited to our illustrations, stories, or designs) within the Services, Darn Pottery’s name, any Darn Pottery trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Darn Pottery’s express written consent and attribution;
(c) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Darn Pottery or other generally available third-party web browsers;
(d) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(e) Use any meta tags or other hidden text or metadata utilizing a Darn Pottery trademark, logo URL or product name without Darn Pottery’s express written consent;
(f) Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us. We will prosecute users who violate our copyright. We will also send prickly hedgehogs to your house.
(g) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(h) Impersonate or misrepresent your affiliation with any person or entity;
(i) Violate any applicable law or regulation; or
(j) Appropriate for any reason whatsoever, any of our compyrighted content, including but not limited to written material and images.
(k) Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law. Hell hath no fury like an angry hedgehog. Don’t make them angry.
10. DMCA/Copyright Policy. Darn Pottery respects copyright law and expects its users to do the same. It is Darn Pottery’s policy to terminate in appropriate circumstances Account holders who infringe or are believed to be infringing the Darn Pottery’s copyrights.
11. Links to Third Party Websites or Resources. The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
12. Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by logging into your Account page on darnpottery.com or by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of the Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
13. Warranty Disclaimers. THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND AND YOUR USE OF THE SERVICES IS DONE AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
(a) Prices for our products are subject to change without notice.
(b) We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk. Many product descriptions on this site were written by hedgehogs and cannot be deemed reliable in any way, shape, or form.
(c) We have made every effort to display as accurately as possible the colors and images of the products that appear at the store. We cannot guarantee that your computer monitor’s display of any color will be accurate.
(d) We may also, in the future, offer new services and/or features through the website. Such new features and/or services shall also be subject to these Terms of Service and Warranty Disclaimers.
14. Certain content, products and services available via our Service may include materials from third-parties.
(a) Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
(b) We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
15. Indemnity. You will indemnify and hold harmless Darn Pottery and its officers, directors, employees, hedgehogs and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
16. Limitation of Liability.
(a) NEITHER DARN POTTERY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DARN POTTERY OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) IN NO EVENT WILL DARN POTTERY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO DARN POTTERY FOR USE OF THE SERVICES OR CONTENT WITHIN THE MONTH PRIOR TO WHEN SUCH LIABILITY AROSE OR ONE HUNDRED DOLLARS ($100) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO DARN POTTERY, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DARN POTTERY AND YOU.
17. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Tennessee, without regard to its conflict of laws provisions. The exclusive jurisdiction for all Disputes (defined below) that you and Darn Pottery are not required to arbitrate will be the state and federal courts located in Greeneville, TN, and you and Darn Pottery each waive any objection to jurisdiction and venue in such courts.
18. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You are waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
(d) If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where Darn Pottery Operates, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(e) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. You’ll pay for all filing, administration and arbitrator fees and expenses whether or not the arbitrator finds your Dispute frivolous. If we prevail in arbitration you’ll pay all of our attorneys’ fees and costs and won’t seek to recover your fees from us.
(f) Class Action Waiver. YOU AND DARN POTTERY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
19. Severability. With the exception of any of the provisions in Section 16(e) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. General Terms.
(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Darn Pottery and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Darn Pottery and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Darn Pottery’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Darn Pottery may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. Any notices or other communications provided by Darn Pottery under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
(c) Waiver of Rights. Darn Pottery’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Darn Pottery. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21. Contact Information. If you have any questions about these Terms or the Services, please contact Darn Pottery at email@example.com Monday through Friday, 9am to 5pm EST.