Terms of Use
the fine printTHE TERMS AND CONDITIONS SET FORTH BELOW (THE "TERMS") GOVERN YOUR USE OF THIS SITE LOCATED AT https://www.theory11.com ON THE WORLD WIDE WEB (THE "SITE") OF THEORY11 ("theory11"), AND ARE LEGALLY BINDING ON YOU. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION CONTAINED ON THE SITE. YOUR USE OF THE SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
1) Your Acceptance
a) By using or visiting the theory11 website at the URL https://www.theory11.com or The Marketplace (theory11 marketplace) or any other affiliated website, or any THEORY11 products, software, data feeds, and services provided to you on, from, or through the theory11 website, including The Marketplace (collectively the "Service") you signify your agreement to abide by and by bound by
i) these terms and conditions (the "Terms of Service"), ii) the theory11 Media Guidelines, found at https://www.theory11.com/media-guidelines, and
iii) theory11's privacy notice, found at https://www.theory11.com/privacy and incorporated herein by reference. If you do not agree to any of these terms and the theory11 privacy notice, please do not use the Service.
b) Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date versions of each of the aforementioned terms, guidelines, notices, policies and any other rules or policies posted at or linked to from the theory11 website. theory11 may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.
2) Service
a) These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. "Content" includes the text, software, scripts, graphics, photos, sounds, music, videos, documents, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of theory11, including but not limited to all products, software and services offered via the theory11 website and The Marketplace. "Products" mean products available for sale on the Site including, but not limited to, magic or cardistry tricks. Content and Products on the Service may have been created and/or produced by third parties and all Content or Products created or produced by theory11 will be specifically identified as such.
b) The Service may contain links to third party websites that are not owned or controlled by theory11. theory11 has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, theory11 will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve theory11 from any and all liability arising from your use of any third- party website.
c) Portions of the Service or Content may be provided by third parties to theory11 ("Third Party Content"). The Third Party Content is, in each case, the copyrighted work of the creator or licensor of such Content, and may be subject to terms of use and/or privacy policies of such third parties. Please contact the appropriate third party for further information regarding such terms.
d) Some Third Party Content may consist of advertisements, promotions, offers, solicitations to purchase goods and/or services, or other commercial interactions with third parties ("Third Party Correspondence"). Unless otherwise stated, any such Third Party Correspondence including the delivery of and the payment for goods and/or services, and any other term, condition, warranty or representation associated with such Third Party Correspondence is solely between you and the applicable third party. You acknowledge and agree that theory11 has no liability, obligation or responsibility for any such Third Party Correspondence.
e) Accordingly, we encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each other website that you visit.
3) theory11 Accounts
a) In order to access some features of the Service, you will have to create a theory11 and/or Artist Account on The Marketplace, the official theory11 marketplace. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You acknowledge and agree that you are solely responsible for any fees which may be incurred under your password-protected account, whether or not you are the individual who undertakes such activities. You must notify theory11 immediately of any breach of security or unauthorized use of your account.
b) Although theory11 will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of theory11 or others due to such unauthorized use.
c) The Site and any content uploaded to the Site is available to be viewed by any person browsing the internet but only a person who has registered and created a theory11 account or Artist Account on The Marketplace is able to buy or sell Products, respectively. Additional Terms of Service apply to the sale and purchase of Products on The Marketplace and those Terms of Service are incorporated herein by reference.
4) General Use of the Service—Permissions and Restrictions
theory11 hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
a) You agree not to distribute in any medium any part of the Service or the Content without theory11's prior written authorization, unless theory11 makes available the means for such distribution through functionality offered by the Service.
b) You agree not to alter or modify any part of the Service.
c) You agree not to access Content through any technology or means other than the video playback pages of the Service itself or other explicitly authorized means theory11 may designate.
d) You agree not to use the Service for any of the following commercial uses unless you obtain theory11's prior written approval:
i) the sale of access to the Service;
ii) the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
iii) the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from theory11 appears on the same page and is of sufficient value to be the basis for such sales.
e) Prohibited commercial uses do not include:
i) uploading an original video to theory11, or
ii) any use that theory11 expressly authorizes in writing.
f) You agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the theory11 servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, theory11 grants the operators of public search engines permission to use spiders to copy materials from publicly available portions of the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. theory11 reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
g) In your use of the Service, you will comply with all applicable laws.
h) In your use of the Service, you will not harass the other users of the Service or send them unsolicited messages for commercial purposes.
i) When using the Service or in your interactions with anyone in the Service, you will not use false information or present yourself as someone else.
j) You will not transmit or spread any virus or similar destruction device through the use of the Services.
k) theory11 reserves the right to discontinue any aspect of the Service at any time.
5) Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
a) The Content on the Service, including but not limited to documents, products, software and services, and the trademarks, service marks and logos ("Marks") on the Service, are owned by or licensed to theory11, subject to copyright and other intellectual property rights under the law.
b) Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a "download" or similar link displayed by theory11 on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of theory11 or the respective licensors of the Content. theory11 and its licensors reserve all rights not expressly granted in and to the Service and the Content.
c) You may display the Content only on your personal computer, and copy and download the Content displayed on this site solely for that purpose, provided that:
i) Both the theory11 copyright notice (© 2021 theory11.com llc) and the permission notice, set forth in this paragraph, appear in the Content so displayed, copied or downloaded,
ii) Such display, copy or download is solely for your personal or internal informational use (that is, not distributed or otherwise transmitted outside of your home or company, or otherwise broadcast in any media), and
iii) Your use complies with any other license terms that are provided with respect to portions of the Content.
d) All rights to Content not explicitly granted to you under these terms are reserved to theory11. You acknowledge and agree that you have no right to create derivative works, publicly perform, or exercise any other rights not explicitly granted to you with respect to the Content.
e) You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
f) You understand that when using the Service, you will be exposed to Content from a variety of sources, and that theory11 is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against theory11 with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless theory11, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
6) Your Content and Conduct
a) As a theory11 account holder you may submit Content to the Service, including videos and user comments. You understand that theory11 does not guarantee any confidentiality with respect to any Content you submit.
b) You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to theory11 all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
c) For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to theory11, you hereby grant theory11 a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and theory11's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that theory11 may retain, but not display, distribute, or perform, server copies of your videos or other Content that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
d) You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant theory11 all of the license rights granted herein.
e) theory11 does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and theory11 expressly disclaims any and all liability in connection with Content. theory11 does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and theory11 will remove all Content if properly notified that such Content infringes on another's intellectual property rights. theory11 reserves the right to remove Content without prior notice.
f) Under certain circumstances, you may offer through the theory11 website and/or The Marketplace to provide Content to theory11 under a royalty , revenue sharing, or some other agreement such as pursuant to The Marketplace Terms of Service. If so, both the terms of that agreement and these Terms apply.
g) theory11 may choose to offer a loyalty program, wherein users can accrue loyalty points or other incentives based on activity on the theory11 website, including but not limited to purchases. These incentives, loyalty points (“Elite Points”), and/or prizes have no cash value, and redemption rates and loyalty programs may be amended, cancelled, or revoked at any time for any or no reason, including but not limited to fraudulent attempts to accrue Elite Point balances.
7) Account Termination Policy
a) theory11 will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.
b) theory11 reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. theory11 may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
c) theory11 reserves the right to terminate your ability to use the Site without prior notice for any reason whatsoever. Additionally, you agree to terminate your use of the Site upon request by theory11.
8) Digital Millennium Copyright Act
a) If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
theory11's designated Copyright Agent to receive notifications of claimed infringement is theory11 Attn: Notice of Infringement, theory11, 4401 Belle Oaks Dr., Suite 120, North Charleston, SC 29405; email: support@theory11.com.
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to theory11 customer service through the "Contact Us" page or by other means. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid. You also acknowledge, agree, and grant theory11 the right to publish your compliant or non- compliant takedown notice, regardless of any confidentiality marking, indication, or request on the face of the notice, as well as any other correspondence received from you relating to a DMCA takedown request or notice of claimed infringement.
b) Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
i) Your physical or electronic signature;
ii) Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
iii) A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
iv) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Charleston, South Carolina, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, theory11 may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at theory11's sole discretion. You also acknowledge, agree, and grant theory11 the right to publish your compliant or non- compliant counter-notice, regardless of any confidentiality marking, indication, or request on indication on the face of the notice, as well as any other correspondence received from you relating to a DMCA takedown request, notice of claimed infringement, or counter- notice.
9) Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THEORY11, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. THEORY11 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THEORY11 DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THEORY11 WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD- PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
10) Limitation of Liability
IN NO EVENT SHALL THEORY11, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT THEORY11 SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. The Service is controlled and offered by theory11 from its facilities in the United States of America. theory11 makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
11) Indemnity
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless theory11, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that your Content or your use of theory11 Content caused damage to a third party; (v) any and all of the above, where such circumstance involved a different person using your Account and/or password. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
12) Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13.
13) Assignment
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by theory11 without restriction.
14) Monitoring
theory11 does not monitor your data or transmissions, yet, theory11 does actively monitor accounts for system utilization. However, you agree that, in theory11's efforts to promote good citizenship within the Internet community, if theory11 becomes aware of inappropriate use of the Site or any theory11 service, theory11 may respond. You acknowledge that theory11 will report to law enforcement authorities any actions which may be considered illegal, as well as any reports it receives of such conduct. When requested, theory11 will cooperate fully with law enforcement agencies in any investigation of alleged illegal activity on the Internet.
15) General
You agree that: (i) the Service shall be deemed solely based in South Carolina; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over theory11, either specific or general, in jurisdictions other than South Carolina. These Terms of Service shall be governed by the internal substantive laws of the State of South Carolina, without respect to its conflict of laws principles. Any claim or dispute between you and theory11 that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Charleston, South Carolina. These Terms of Service, together with the Privacy Notice at https://www.theory11.com/privacy and any other legal notices published by theory11 on the Service, shall constitute the entire agreement between you and theory11 concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and theory11's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. theory11 reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND THEORY11 AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED
The Marketplace Terms & Conditions
APPLICABLE TO SALES ON
THE MARKETPLACE - THEORY11 MARKETPLACE
16) These Terms of Service apply to all Buyers and Sellers of Product on The Marketplace (theory11 marketplace), in addition to the Terms of Service applicable to the Service and the Site.
17) By creating an account, you acknowledge your consent and desire for theory11 to send email notifications and updates from time to time, including but not limited to sales reports to Sellers, updates to Sellers on the sales performance of their Product, updates to Buyers on additional merchandise for sale of possible interest to the Buyer, artist related news and events, and other items in the discretion of theory11.
18) You do not have to pay a fee to create an account. You do not have to pay a fee to sell Products on the Site. If you are a Buyer of a Product, you will pay a fee to buy the right to use that Product subject to the terms and conditions of sale posted by the Seller. If you are a Seller, you will receive the fee paid by the Buyer (less the amounts payable to theory11 as noted in these Terms of Service) collected by theory11 for each sale of your Product to a Buyer.
19) The Seller shall initially suggest an asking price for all Products to be offered on the Site. theory11 will take suggested pricing provided by the Seller into consideration, but theory11 reserves the right to control the exact price of Products offered for sale on The Marketplace. theory11 may from time to time choose to offer discounts, promotional events, or coupon codes to assist in promotion and sale of the Products on the Site and is free to do so in its discretion without liability to the Seller with respect to the reduced purchase price obtained due to any such offer or discount.
20) Sellers are responsible for paying all fees and taxes (including withholding tax), associated with the sale of Products on the Site wherever levied (including any goods and services or value added taxes, if applicable).
21) All references on the Site to "$" and "dollars" are to the lawful currency of the United States of America unless otherwise specified. All prices on the Site are to be expressed in US currency.
22) The Site is an online facility that allows you to sell, and buy, Products. Ownership of Products remains with the Seller. theory11 does not have any control over, and does not take any responsibility for, the quality, safety or legality of any Products downloaded by you from the Site. theory11 does not warrant that the Products or any content, code, data or materials downloaded from the Sites does not infringe the intellectual property rights of a third party. Each Seller is required to warrant that its Product does not infringe the intellectual property rights of any third party.
23) While Seller retains all ownership rights in Products, by submitting Products to theory11, Seller hereby grants theory11 a perpetual, worldwide, non-exclusive, royalty-free, sub- licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Products in connection with the Service and theory11's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. The above licenses granted by Seller in Products submitted to the The Marketplace terminate within a commercially reasonable time after removal or deletion of the Products from the Site. Seller understands and agrees, however, that theory11 may retain, but not display, distribute, or perform, server copies of the Products that have been removed or deleted.
24) If you buy a Product, you do so on the following terms:
1. you cannot cancel an order for a Product once the order has been submitted;
2. theory11 does not give any undertaking as to the continued availability of Products offered for sale on the Site;
3. once your order for a Product is accepted, and you pay the fee, you acquire a non- exclusive license to use the Product in accordance with the conditions of the license that you acquire; and
4. ownership of the Product remains with the Seller.
25) If you sell a Product, you warrant to theory11 and each Buyer that, as a Seller, in relation to each Product that you offer for sale on the Site:
1. you own the intellectual property rights in that Product;
2. that Product does not infringe the intellectual property rights of a third party;
3. the description for that Product is not false, inaccurate or misleading;
4. that Product is not fraudulent, stolen or an unlawful item;
5. that Product does not violate any applicable law, statute, ordinance or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, criminal law, antidiscrimination or trade practices or fair trading laws);
6. that Product is not defamatory, unlawfully threatening or unlawfully harassing;
7. that Product is not obscene and does not contain child pornography and does not constitute or contain material that is adult in nature or harmful to persons under the age of 18 years;
9. that Product does not contain viruses or other computer codes, files or programs designed to limit or destroy the functionality of other computer software or hardware;
10. that Product would not create liability for theory11 or cause theory11 to lose (in whole or in part) the services of its ISP or other suppliers; and
11. that Product would not cause theory11 to violate any applicable law, statute, ordinance or regulation by making it available on the Site.
26) As a Seller, you acknowledge and agree that any Product offered for sale by you on the Site must first be submitted to theory11 to enable theory11 to check the quality of the Product and the information provided with the Product and its general compliance with theory11's standards and its suitability for uploading on the theory11 Site. theory11 may refuse, in its sole discretion, to allow you to offer the Product for sale on the Site. theory11 is not required to give reasons for refusing to allow you to offer a Product for sale on the Site.
27) Any and all Product descriptions provided by Seller will be fair, clear, honest, and accurate. Any phrasing, words, or sentences that are deemed inaccurate or unclear at the discretion of theory11 staff may be removed or modified at will prior to publication or after publication. Any instances of deceit or misleading claims within the description are grounds for denial from publication on The Marketplace, temporary removal from The Marketplace (if already published), permanent removal from The Marketplace (if already published), or removal of Seller's account. theory11 has the right but not the obligation to modify the title or text description content provided by Seller for any reason or no reason, subject to the sole discretion of theory11 staff and crew based on our knowledge of the industry and best judgment. While theory11 may provide modifications as noted herein, theory11 is not to be considered the editor of any content associated with the Product provided by the Seller, and all issues associated with the Product and the content associated with the Product provided by the Seller shall remain the sole responsibility of the Seller.
28) To improve the marketplace experience, Products offered on The Marketplace may be rated or reviewed. All reviews and ratings must be honest and written in good faith with full disclosure of any "material connections" (including payments or free products) provided to the reviewer by the Seller and otherwise consistent with the Federal Trade Commission guidelines governing endorsements and testimonials. theory11 further prohibits the submission of false negative reviews as to any competing Products. theory11 reserves the right to remove any reviews without notice to the reviewer in theory11's sole discretion. To ensure consumers can trust that reviews provided for Products on The Marketplace are honest and written in good faith, theory11 requires that persons with an Artist Account utilize their full, real name and accurately identify themselves and their connection to the Product being reviewed in order to have any of their reviews or ratings of any Products published in The Marketplace. In addition, as a security precaution and added measure to confirm that the review or rating is written in good faith, and not falsified by the any person who may benefit from positive or negative reviews, theory11 actively logs the IP address of each review submission. Any impropriety pertaining to reviews and ratings is grounds for immediate suspension or permanent removal of the Artist Account. While theory11 in its discretion may take any and all steps deemed by theory11 to be appropriate to ensure that ratings and reviews are written in good faith, under no circumstances shall theory11 be responsible for the content of any ratings or reviews, whether negative or positive.
29) All Artists agree to engage in a professional, honest manner in promotion and publicity and management of his or her effects published on The Marketplace. By submitting content for publication on The Marketplace, the Artist agrees not to utilize any improper means to artificially increase or manipulate the statistics engine, popularity rankings, sales rankings, code, algorithms, or any other administrative aspect of The Marketplace as a means to artificially elevate their own ranking or popularity on The Marketplace. theory11 reserves the right to make all possible efforts to employ security mechanisms to prevent such practices, but under no circumstances shall theory11 be responsible for any popularity rankings, sales rankings, ratings or reviews, whether negative or positive.
30) As a Seller, you acknowledge and agree that if theory11 determines, in its absolute discretion, or is notified by a third party, that a Product that you offer for sale on the Site does not comply with any applicable laws and/or these Terms of Service, theory11 will disable your Account and withhold all amounts that you may have earned from the sale of the relevant Product until any dispute in relation to the Product has been resolved to the satisfaction of theory11.
31) As a Seller, you acknowledge and agree that theory11 may, at its sole discretion, elect at any time to remove your Products from the Site without notice to you. theory11 is not responsible for any loss that you may suffer as a result a Product being removed from any of the Site by theory11.
32) As a Buyer, you acknowledge and agree that despite theory11's reasonable precautions, Products may be listed at an incorrect price or with incorrect information due to a typographical error or similar oversight. In these circumstances, theory11 reserves the right to cancel or reverse a transaction, even after your order has been confirmed and a payment has been processed. If a transaction is cancelled, theory11 will immediately arrange for any payment to be refunded.
33) theory11 is not liable for any loss suffered by a Seller as a result of a Buyer making use of a Product contrary to the conditions on which the Product was sold to the Buyer.
34) As a Seller, you agree and acknowledge that theory11 may use your Product (or part of a Product) from time to time to promote the Site, including on a features page on the Site itself.
35) Prior to submitting any Product to theory11 for sale on the Site, all Sellers must complete and submit appropriate forms for tax purposes such as a completed W-9 from U.S. persons and an applicable form W-8 from foreign persons (generally a W-8BEN), as directed by theory11 in its sole discretion.
36) theory11 does not discriminate on the basis of race, religion, national origin, color, sex, age, veteran status, or disability. It is theory11's intention that all qualified submissions be given equal opportunity and that selection decisions are based on quality related factors. Nevertheless, theory11 reserves the right to approve or disapprove any Content for publication or Product for sale on the Site for any or no reason.
37) theory11 shall provide all customer support and technical support to customers who purchase Product on The Marketplace. No fees are deducted for customer support, bandwidth, payment processing, or any other deduction not contained with these Terms of Service.
38) theory11 has complete control over the handling of returns and requests for refunds on Product purchased on the Site when such refund is reasonably requested by the Buyer within thirty (30) days of purchase. In theory11's sole discretion, a refund may be granted to the customer when deemed necessary in the interest of maintaining a fair, positive environment with unrivaled customer service.
39) The Seller shall receive sixty (60) percent of net revenue derived from sale of Products, minus any bona fide returns. The remaining forty (40) percent of net revenue is retained by theory11 in consideration of the benefit provided by, and to cover theory11's costs and expenses in connection with running and providing customer support and related services for, The Marketplace. On or before the 11th day of each month, theory11 will post a PDF statement on the Seller's account page (Artist Dashboard) detailing sales made, if any, during the prior month and the amounts due to the Seller for any such sales made during the previous month.
The amounts due to the Seller, if equal to or more than fifty dollars ($50.00) will then be paid by theory11 by check postmarked on the 11th day of the month directed to the Seller at the address then associated with Seller's account. If the amounts due to Seller are less than fifty dollars ($50.00), said amount shall be held in Seller's account and carried over to the next month until such time as the amount reaches fifty dollars ($50.00). The amounts due Seller that are carried over in Seller's account are not deposits. theory11 will pay all amounts due Seller by check postmarked on the 11th day of the month following 30 (thirty) days of the closure of Seller's account directed to the Seller at the address last associated with Seller's account, provided no returns are pending or other Product disputes are pending. If returns or other Product disputes are pending, any amounts due Seller will be paid by theory11 by check postmarked on the 11th day of the month following 30 (thirty) days of the resolution, to be determined in theory11's discretion, of any pending returns and Product disputes, and will be directed to the Seller at the address last associated with Seller's account.
40) Nothing in these Terms constitutes a partnership between the parties or makes one party an agent of another party for any purpose. A party cannot in anyway or for any purpose bind another party contract in the name of another party.
Additional Terms of Service for International Orders
Delivery of Products purchased from theory11 shall occur, and risk of loss and title to Products shall pass to customer, in the case of Products shipped by courier / carrier, at the time theory11 transfers the Products to the carrier or shipping agent at the facility in the United States from which customer’s order is shipped or, in the case of Products shipped through the United States Postal Service, at the time theory11 transfers physical possession of the Products to the United States Postal Service or its agent. As customer and owner of the Products, you authorize theory11, on your behalf, to arrange for one or more couriers/carriers to transport the Products to you, and consistent with the foregoing, delivery of the Products to such courier/carrier, for the purpose of transmission to you as customer, constitutes delivery of the Products to you.
1. You are shopping on a merchant’s website (the “Merchant”). If you place an order with the Merchant for delivery to an address in the UK (a “Qualifying Customer Order”), where the total value of the Products comprising of that order does not exceed 135 (one hundred and thirty five) British Pounds Sterling, or where Products comprising of that order are sent in separate consignments the value of which does not exceed 135 (one hundred and thirty five) British Pounds Sterling, the Products will be sold by Passport Global Limited (“Passport”), in the way we describe below.
2. If you place a Qualifying Customer Order, the item(s) that you are purchasing will be sold first by the Merchant to Passport, and then by Passport to you. Passport becomes the “Supplier” of goods for UK VAT purposes in relation to your purchase. Your payment information, shipping address, and any additional information required or requested to complete your order will be shared directly with Passport and its nominated agents and contractors, in order to enable Passport complete your Customer Order.
3. Your Qualifying Customer Order is subject to: (1) these Terms of Service; and (2) any relevant terms and conditions imposed by the Merchant. By completing your purchase, you confirm that you have read and agree to be bound by all of these.
4. By placing a Customer Order on the Merchant’s website, you understand and agree that:
4.1 You are dealing with and providing your information to Passport. Passport is entitled to verify and authenticate your payment information, and if it is unable to verify this information, Passport may contact you and/or your payment card issuer to confirm your identity and/or your intent to place the order.
4.2 If there is an error in the price listed for a product on the Merchant’s website, or in the price applied to the product during the sale of and processing of your order for the product, Passport is entitled to contact you, correct the price, and/or cancel your order.
4.3 The Merchant remains responsible for handling payment for your order.
4.4 Once your payment is processed, ownership in the items will shift from Passport, to you, and, the items in your order will be provided to a carrier for shipment to you.
4.5 Passport or the Merchant will direct the carrier to ship your order to the shipping address you provided. Certain addresses will be ineligible for shipment, such as PO box addresses.
4.6 Passport may refuse service, refuse to process or complete Qualifying Customer Orders, remove or edit content, or cancel such orders for any reason or for no reason, in its sole discretion.
4.7 If you are under the age of majority in the jurisdiction in which you reside, approval of your parent or guardian is required to complete your purchase.
5. Currency. You may select your preferred payment method and currency from a list of options available at the time of checkout. Please note that the relative value of currencies may vary, and as a result, the actual purchase price for items in your order may vary based on the currency selected.
6. Billing. If you use a payment card or other electronic form of payment as your payment type, the charges to your account for your order will be subject to the Merchant’s terms and conditions.
7. Shipping. Items in your order may be shipped via a single shipment, or via multiple shipments. If items in your Qualifying Customer Order are shipped via multiple shipments, or if your order is only partially filled and shipped, you will only be charged for those items that are actually shipped to you.
8. Chargebacks, Fraud Prevention and Void Transactions. For your protection, Passport may use various fraud prevention protocols and policies, and industry-standard verification systems, to reduce fraud and minimize chargeback risks. You must comply with such protocols and policies, including card authentication, and “ship to” and “bill to” address verification. Once an order is placed, you may not change any authenticated payment information or any verified “ship to”/“bill to” address. If there is a systemic error which results in the processing or acceptance of a transaction for which authorization has been declined, that transaction will be void.
9. Customer Service and Returns. Questions or complaints about your order should be directed to the Merchant in the first instance. Passport may work with the Merchant as necessary to resolve your issue. The Merchant is authorized to allow for returns or refunds on orders in accordance with the Merchant’s policy, including to reimburse you for the original sales prices of returned products. Passport may refuse any return requested if a restriction applies to the item for which the return is requested. You accept that your sole remedies are against Merchant.
10. General Terms. The following general terms apply whenever you place a Qualifying Customer Order through the Merchant’s website:
10.1 Compliance with Applicable Laws. You certify that any products purchased through a Qualifying Customer Order will not be exported, sold, or transferred in violation of any applicable laws, including without limitation the United States Export Administration Regulations or applicable United States sanctions and embargoes administered by the United StatesTreasury Department, nor It is your responsibility to know the laws of the country into which you are importing any products that you order from the Merchant’s website. By placing a Qualifying Customer Order you certify that the import of the products you have ordered to the country of the shipping address you have provided does not violate any laws or regulations of that country.
10.2 Privacy. To complete your Qualifying Customer Order you will be providing personal information to Passport and you consent to your personal information being collected, used, processed, disclosed and/or stored by Passport and our service providers as may be required in order to process and complete your order and otherwise provide the services you have requested, in accordance with Passport’s Privacy Policy. Passport accepts no liability or responsibility for the collection, use, processing, disclosure or storage of your personal information by the Merchant or any service provider engaged by the Merchant. The collection, use, processing, disclosure and/or storage of your personal information by the Merchant or its service providers is governed by the Merchant’s privacy policy. The Merchant and Passport may analyze transactional data for the purpose of identifying trends, statistics and measurements that could contribute to the enhancement of the Merchant’s Customer experience and/or the services provided by Passport. Any transactional data analyzed for these purposes will be aggregated and de-identified, meaning that any personally identifiable information will be removed.
10.3 Electronic Communications. When you place a Qualifying Customer Order through the Merchant’s website, you are communicating with Passport electronically, and you consent to entering into this agreement by electronic means, and to receive communications from Passport electronically/via email.
10.4 Modifications. You acknowledge that Passport may make changes to its system, policies, and these Terms of Service atany time. Passport will ensure that the current version of these Terms of Service is presented every time you make a Qualifying Customer Order on the Merchant’s website. You are responsible for reviewing these Terms of Service each time you make a Customer Service. If you do not agree to any change in the Terms of Service, you must not complete your order. Any order placed after the effective date of a change will constitute your agreement to the change and to the current Terms of Service.
10.5 Severability. If any or any portion of these Terms of Service is found to be invalid, void, or for any reason unenforceable, that term or portion of terms will be severed, and will not affect the validity and enforceability of the remaining terms.
10.6 Proceedings. Any action or proceeding arising out of or relating to these Terms of Service must be brought in the courts of California, United States, and you hereby irrevocably agree to the jurisdiction of the courts of California, United States for all such purposes.
10.7 Language. The parties have agreed and expressly requested that this agreement and all documents related to it be drawn up in English.
10.8 Customs Fees (if applicable). Orders shipped outside the United States may be subject to customs import duties and/or taxes based on the destination country. If assessed, customs charges (i.e., duties and taxes) are the responsibility of the customer in addition to shipping cost. theory11 is unable to predict or control customs charges as they are levied by the destination country.
SCHEDULE 1 FOR INTERNATIONAL ORDERS
1. You are shopping on a merchant’s website (the “Merchant”).
2. If you place a Qualifying Customer Order, the Product(s) that you are purchasing will be sold first by the Merchant to Passport Global Inc (“Passport”), and then by Passport to you under these Terms and Conditions. Your payment information, shipping address, and any additional information required or requested to complete your order will be shared directly with Passport and its nominated agents and contractors, in order to enable Passport to complete your Qualifying Customer Order.
3. Your Qualifying Customer Order is subject to: (1) these Terms and Conditions; and (2) any relevant terms and conditions imposed by the Merchant. By completing your purchase, you confirm that you have read and agree to be bound by all of these. By placing a Qualifying Customer Order on the Merchant’s website, you understand and agree that:
3.1 You are dealing with and providing your information to Passport. Passport may contact you about your order.
3.2 If there is an error in the price listed for a Product on the Merchant’s website, or in the price applied to the product during the sale of and processing of your order for the Product, Passport and its nominated agents are entitled to contact you, correct the price, and/or cancel your order.
3.3 The Merchant remains responsible for handling payment for your order.
3.4 Once your payment is processed, ownership in the items will shift from Passport, to you.
3.5 Certain addresses will be ineligible for shipment, such as PO box addresses.
3.6 Passport may refuse service, refuse to process or complete Qualifying Customer Orders, remove or edit content, or cancel such orders for any reason or for no reason, in its sole discretion.
3.7 If you are under the age of majority in the jurisdiction in which you reside, approval of your parent or guardian is required to complete your purchase.
3.8 You authorise Passport and its nominated agents and contractors to perform any of the following activities in connection with the delivery of any Products: (i) to act as your agent to make and file customs declarations and all related actions as your direct representative, which expressly includes completing any documents, amending product or Harmonised System codes, and paying any duties, taxes or penalties required under applicable laws and regulations; (ii) to act as forwarding agent for customs import and export control purposes solely for the purpose of designating a customs broker to perform customs clearance and entry; and (iii) to redirect an order to your customs broker or other address upon request by any person whom Passport’s nominated agents and contractors believe in its reasonable opinion to be authorised.
4. Currency. You may select your preferred payment method and currency from a list of options available at the time of checkout. Please note that the relative value of currencies may vary, and as a result, the actual purchase price for items in your order may vary based on the currency selected.
5. Billing. If you use a payment card or other electronic form of payment as your payment type, the charges to your account for your order will be subject to the Merchant’s terms and conditions.
6. Shipping. Items in your order may be shipped via a single shipment, or via multiple shipments. If items in your Qualifying Customer Order are shipped via multiple shipments, or if your order is only partially filled and shipped, you will only be charged for those items that are actually shipped to you.
7. Chargebacks, Fraud Prevention and Void Transactions. For your protection, Passport may use various fraud prevention protocols and policies, and industry-standard verification systems, to reduce fraud and minimize chargeback risks. You must comply with such protocols and policies, including card authentication, and “ship to” and “bill to” address verification. Once an order is placed, you may not change any authenticated payment information or any verified “ship to”/“bill to” address. If there is a systemic error which results in the processing or acceptance of a transaction for which authorisation has been declined, that transaction will be void.
8. Customer Service and Returns. Questions or complaints about your order should be directed to the Merchant in the first instance. Passport may work with the Merchant as necessary to resolve your issue. The Merchant is authorised to allow for returns or refunds on orders in accordance with the Merchant’s policy, including to reimburse you for the original sales prices of Products returned to the Merchant’s nominated address. Passport may however refuse any return requested if a restriction applies to the item for which the return is requested. You accept that your sole remedies are against the Merchant. Where a return by the Customer is authorised by Passport or the Merchant, Passport shall also have the right to return the item to Merchant and accordingly the Merchant shall issue a credit note to Passport and Passport shall provide a credit note to the Customer, and Passport’s direction, ownership and risk in the Products for return shall pass directly to the Merchant. Where a return is authorised by Passport or the Merchant, the Merchant shall, at Passport’s direction and acting in its name, provide a credit note to the Customer to the extent of the value of the Product(s) authorised to be returned directly to the Merchant. In relation to any return of Products to the Merchant, you authorise Passport and its nominated agents to act on your behalf, and to recover for its own account, any import duties and taxes. If required, you will sign any such document that is reasonably required to facilitate the return of the Products and the recovery of any import duties and taxes.
9. General Terms. The following general terms apply whenever you place a Qualifying Customer Order through the Merchant’s website:
9.1 Compliance with Applicable Laws. You certify that any Products purchased through a Qualifying Customer Order will not be imported, exported, sold, or transferred in violation of any applicable laws, including without limitation the United States Export Administration Regulations or applicable United States sanctions and embargoes administered by the United States Treasury Department, and equivalent statutes, regulations and codes of England and Wales or the EU. It is your responsibility to know the laws of the country into which you are importing any Products that you order from the Merchant’s website. By placing a Qualifying Customer Order you certify that the import of the Products you have ordered to the country of the shipping address you have provided does not violate any laws or regulations of that country.
9.2 Privacy. To complete your Qualifying Customer Order you will be providing personal information to the Merchant and Passport and you consent to your personal information being collected, used, processed, disclosed and/or stored by the Merchant and Passport and our service providers as may be required in order to process and complete your order and otherwise provide the services you have requested, in accordance with the Merchant’s and Passport’s Privacy Policy. Passport accepts no liability or responsibility for the collection, use, processing, disclosure or storage of your personal information by the Merchant or any service provider engaged by the Merchant. The collection, use, processing, disclosure and/or storage of your personal information by the Merchant or its service providers is governed by the Merchant’s privacy policy. The Merchant and Passport may analyse transactional data for the purpose of identifying trends, statistics and measurements that could contribute to the enhancement of the Merchant’s Customer experience and/or the services provided by Passport. Any transactional data analysed for these purposes will be aggregated and de-identified, meaning that any personally identifiable information will be removed.
9.3 Electronic Communications. When you place a Qualifying Customer Order through the Merchant’s website, you are communicating with Passport electronically, and you consent to entering into this agreement by electronic means, and to receive communications from Passport electronically/via email.
9.4 Modifications. You acknowledge that Passport may make changes to its system, policies, and these Terms and Conditions at any time. Passport will ensure that the current version of these Terms and Conditions is presented every time you make a Qualifying Customer Order on the Merchant’s website. You are responsible for reviewing these Terms and Conditions each time you make a Qualifying Customer Order. If you do not agree to any change in the Terms and Conditions, you must not complete your order. Any order placed after the effective date of a change will constitute your agreement to the change and to the current Terms and Conditions.
9.5 Severability. If any or any portion of these Terms and Conditions is found to be invalid, void, or for any reason unenforceable, that term or portion of terms will be severed, and will not affect the validity and enforceability of the remaining terms.
9.6 Proceedings. Any action or proceeding arising out of or relating to these Terms and Conditions must be brought in the courts of California, United States, and you hereby irrevocably agree to the jurisdiction of the courts of California, United States for all such purposes.
9.7 Language. The parties have agreed and expressly requested that this agreement and all documents related to it be drawn up in English.
9.8 Definitions. “Member State”, “third country” and “third territories” as defined in Article 5 of Council Directive 2006/12/EEC. “Products” means those goods offered for sale via the Merchant’s website which are not of a class or description subject to any duty of excise whether or not those goods are in fact chargeable with that duty, and whether or not that duty has been paid on those goods, or prohibited or restricted goods were they to be imported into the UK, and which are not subject to any restrictions on export, sale, or transfer in violation of any Applicable Laws. “Product Prices” means the prices including VAT at the appropriate rate of the Products as held out for sale to Customer by the Merchant and accordingly, by Passport to Customer; and “Product Price” means the price of an individual Product. “Qualifying Customer Order” meets all of the following conditions:
(A) It is an order for Product or Products placed via the Merchant’s website which are to be transported from:
- a third country or territory, excluding Northern Ireland (“NI”), to an address in a Member State of the EU (e.g. USA to France);
- a third country or territory, excluding the UK, or from a Member State of the EU to an address in Great Britain (e.g. Germany to England); or
- a third country or territory, excluding NI, to an address in NI (e.g. USA to NI); and
(B) In relation to the transport of a Product or Products to an address:
- in Great Britain or NI, the total intrinsic value of the Product or Products comprising that order does not exceed ÂŁ135 (one hundred and thirty five) British Pounds Sterling, or where Products comprising an order exceed that sum but are sent in separate consignments, the intrinsic value of each consignment of which the Product or Products form part does not exceed ÂŁ135 (one hundred and thirty five) British Pounds Sterling; and
- in a Member State of the EU, the total intrinsic value of the Product or Products comprising that order does not exceed €150 (one hundred and fifty) Euros, or where Products comprising an order exceed that sum but are sent in separate consignments, the intrinsic value of each consignment of which the Product or Products form part does not exceed €150 (one hundred and fifty) Euros.
FOR CANADIAN CUSTOMERS
For goods shipped by means other than through the United States Postal Service:
By ordering Products from theory11, you authorize the customs broker selected by theory11 or its shipping agent to act as your agent to transact business with the Canada Border Services Agency (CBSA) to clear merchandise, pay duties and taxes, and to handle any merchandise returns and refund claims on your behalf. On checkout, we calculate and collect the estimated applicable taxes and duties that the broker will pay on your behalf to the CBSA.
For goods shipped through the United States Postal Service:
Products will be shipped through the United States Postal Service (USPS) and ultimately through Canada Post. Goods may be shipped through the USPS ePacket service, in which case applicable duties and taxes will be collected by the Merchant or its shipping agent and paid to the CBSA on your behalf if assessed by CBSA at the time of importation, or through the regular USPS service, in which case you are responsible for paying the applicable duties and taxes at the time you receive your Products. In either case, you are ultimately responsible for paying all applicable duties and taxes on the Products.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
theory11 (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at support@theory11.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Orange, Connecticut before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which theory11’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
In addition, you agree to our Messaging Terms (https:/