Terms of Use

Date of Last Revision: [DATE]

Welcome to the Clarkin Collection website (the “Website”). These Terms of Use (the “Agreement”) constitute a legally binding agreement made by and between CLARKIN COLLECTION, LLC, a California limited liability company dba Clarkin Creation (“we”, “us”, “our”, or “Clarkin”) and the users and/or purchasers of all of our Websites, applications, content, photographs, art, text, graphics, logos, images, products and services (the “Services”), whether personally or on behalf of an entity (“you” or “your”). This Agreement governs your use of the Services offered by Clarkin, so please read it carefully.

PLEASE NOTE THAT BY ACCESSING OR USING ANY PART OF THE SERVICES, REGARDLESS OF HOW YOU INTERACT WITH US – ONLINE, MOBILE, THROUGH A STORE, OR IN ANY OTHER MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE SERVICES. CLARKIN RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME. YOUR CONTINUED USE OF THE SERVICES CONSTITUTES ASSENT TO ANY NEW PROVISIONS OF THIS AGREEMENT THAT MAY BE POSTED WITHIN THE SERVICES IN THE FUTURE.

You acknowledge that the Services may be provided under various Clarkin websites, vendors, or stores, which may be provided by Clarkin subsidiaries and affiliates and/or independent third-party businesses.

Eligibility

Only persons of legal age can accept this Agreement. You hereby represent that you are at least 18 years old, or the age of legal majority in your jurisdiction and that you are legally able to enter into this Agreement.

Use of Content

The Services are protected by copyright under both United States and foreign laws and are exclusively owned by Clarkin. Any use of the Services not expressly permitted by the Agreement is a breach of the Agreement and may violate copyright, trademark, and other laws. Materials from the Services are subject to change or removal without notice in the sole discretion of Clarkin. All rights not expressly granted herein are reserved to Clarkin.

Provided that you are eligible to use the Services, you are granted a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use the Services in connection with your use of the Services for personal, noncommercial use, provided that you do not obscure, alter or delete any trademark, copyright, or other proprietary notices.

You may not alter or remove any copyright and/or proprietary rights notices that are contained in materials from the Services. You may not upload or republish the Services’ content on any Internet, Intranet or Extranet site or use the information in any other database or compilation, and any other use of the Services’ content is strictly prohibited. Your license is subject to this Agreement and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Services beyond the scope of the license granted above is prohibited. The limited license granted by Clarkin terminates if you do not comply with all conditions of use set forth in this Agreement. Your permission to use the Services automatically terminates and you must immediately destroy any copies that you have made of materials from the Services.

Copyright

All materials in the Services, including without limitation, the Clarkin logo, designs, text, graphics, information, data, images, audio, video, applications, software, metadata, compilations, graphical user interfaces, other files, and the selection, arrangement and organization thereof are either owned by Clarkin or are the property of Clarkin’s suppliers or licensors. No Services content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission.

Trademarks

Clarkin, the Clarkin logo, and the other Clarkin product names, tag lines, page headers, custom graphics, button icons, and scripts shown on the Services are service marks, trademarks or trade dress of Clarkin. Any use by you of such marks or trade dress is for the sole benefit of Clarkin and all goodwill generated by such use will inure solely to Clarkin. If you refer to Clarkin’s marks or logos, you must include appropriate attribution to Clarkin. All other service marks, trademarks, trade names and the like that appear on the Services are the property of their respective owners. You may not use (including as part of a domain name) any of these marks, trade dress, or trade names without express permission, including, without limitation, in connection with any product or service that is not Clarkin’s or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Clarkin.

Ownership and Use of Intellectual Property

Clarkin retains ownership of its intellectual property rights and you do not obtain any rights therein by virtue of this Agreement or otherwise. You have no right to use, copy, display, perform, publish, create derivative works from, create new works or abstracts from, distribute, have distributed, or sublicense materials or content available on the Services, except as set forth in this Agreement.

Representations By Each Party

Each party represents and warrants to the other party: (1) that it has the full power and authority to enter into and perform its obligations under this Agreement; (2) the assent to and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules; and (3) this Agreement constitutes legal, valid and binding obligations of the parties executing or assenting to this Agreement, enforceable in accordance with its terms and conditions, except that: (i) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, affecting creditors’ rights and remedies generally, and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defense and to the discretion of the court before which any proceeding therefor may be brought.

Representations By You

You represent and warrant to Clarkin that: (1) you will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual or proprietary right of any third party in your use of the Services; and (2) you will comply with all applicable laws, rules and regulations in your use of the Services, including this Agreement.

Limitations on Your Use of the Services

By accepting this Agreement, you have represented that you are at least 18 years old, or the age of legal majority in your jurisdiction, and that you are legally able to enter into this Agreement. That is why you are allowed to use the Services. You are strictly prohibited from assigning your right to use the Services to any person or entity and are prohibited from assigning your right to use the Services to any persons under the age of 18, unless they are accompanied by you. If a Clarkin service provider asks to see proof of identity you agree that you may be denied use of the Services if you refuse to comply or the proof of identity does not match the information provided with respect to the Account being used. You further agree to comply with all applicable state and federal laws when using the Services and you acknowledge you may only use the Services for lawful purposes. You are strictly prohibited from using the Services in a manner that creates a nuisance, annoyance, inconvenience or property damage.

Data Network Access

Your use of the Services requires an internet connection, which may incur data and messaging rates and fees. You are solely responsible for payment of those rates and fees. You are also responsible for acquiring a device that is compatible with the Services, and Clarkin does not represent or warrant in any way that the Services, or any portion thereof, will be compatible with your device. You also acknowledge that Clarkin has no control over the internet speed and quality you are receiving on your device. You shall not hold Clarkin liable for any damages arising out of, relating to or connected with delays and/or malfunctions of your device and the internet connection you are receiving.

Payment

Clarkin provides the Services for a fee. You acknowledge that after you have received the Services Clarkin will charge you a final, non-refundable fee, inclusive of applicable taxes where required by law. All charges are due immediately and will be charged to the preferred payment method designated in your Account. You may cancel your request for Services at any time prior to production of the Services; Clarkin reserves the right to charge you a cancellation fee. Clarkin further reserves the right to alter charges for any or all Services at any time in Clarkin’s sole discretion. You will receive a receipt by email after your preferred payment method has been charged. In the event your preferred payment method has been declined, you authorize Clarkin to charge all applicable fees to a secondary payment method associated with your Account, if available.

Promotional Codes

In its sole discretion, Clarkin may create promotional codes you may use to redeem for Account credit, or as may be designated by Clarkin, other applicable credits related to your use of the Services. You shall not duplicate, sell or transfer promotional codes in any manner or make them available to the general public, unless expressly authorized by Clarkin. You acknowledge that Clarkin may disable promotional codes at any time and for any reason without liability to Clarkin. You further acknowledge that promotional codes may not be redeemed for cash and may expire prior to your use. If Clarkin believes you have received a credit related to your use of the Services in error and/or it was obtained fraudulently, illegally, or in violation of the applicable promotional code’s terms or this Agreement, Clarkin may withhold or deduct those credits from your Account without prior notice.

Indemnification

You agree to defend, indemnify and hold Clarkin and its employees, representatives, agents, attorneys, affiliates, directors, officers, managers and shareholders (the “Indemnified Parties”) harmless from any damage, loss, cost or expense including without limitation, attorneys’ fees and costs, and expert fees incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the indemnified Parties: (1) alleging facts or circumstances that would constitute a breach of any provision of this Agreement by you or; (2) arising from, related to or connected with your use of the Services. If you are obligated to provide indemnification pursuant to this provision, Clarkin may, in its sole discretion, control the defense, settlement and disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle, compromise or in any other manner dispose of any Claim without the consent of Clarkin.

Disclaimers of Warranties

CLARKIN PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. CLARKIN DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THEIR USE (REGARDLESS OF HOW YOU INTERACT WITH US – ONLINE, MOBILE, THROUGH A STORE, OR IN ANY OTHER MANNER): (1) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS; (2) WILL MEET YOUR REQUIREMENTS; OR (3) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE, DEVICE OR SOFTWARE YOU USE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF, RELATED TO OR CONNECTED WITH YOUR USE OF THE SERVICES REMAINS SOLELY WITH YOU. CLARKIN MAKES NO WARRANTIES OTHER THAN THOSE EXPRESSLY MADE IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.

Third Party Services

THE THIRD-PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION THAT CLARKIN PROVIDES ON OR MAKES AVAILABLE THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, THOSE AVAILABLE THROUGH THIRD-PARTY ADVERTISEMENTS, ARE NOT CONTROLLED BY CLARKIN. ACCORDINGLY, CLARKIN MAKES NO WARRANTIES REGARDING SUCH THIRD-PARTY SERVICES, RESOURCES, AND INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT, AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD PARTY SERVICES, RESOURCES OR INFORMATION.

YOU ACKNOWLEDGE THAT DIFFERENT TERMS OF USE AND PRIVACY POLICIES MAY APPLY TO YOUR USE OF THIRD PARTY SERVICES AND CONTENT THAT CLARKIN DOES NOT CONTROL. CLARKIN SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY PRODUCTS OR SERVICES OF SUCH THIRD PARTY PROVIDERS (E.G., APPLE INC., GOOGLE, INC., MICROSOFT CORPORATION AND BLACKBERRY LIMITED).

DMCA Copyright Policy and Copyright Agent

Clarkin respects the intellectual property rights of others and expects its users to do the same. Clarkin may remove content that, in its sole discretion, appears to infringe the intellectual property rights of others.

Except as otherwise indicated, all content within the Services, including text, graphics, logos, button icons, photos, images, forms, audio, video, questionnaires, and software, is the property of Clarkin or its licensors and is protected by the United States and international copyright laws. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials appearing within the Services infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. In addition, if you believe in good faith that a notice of copyright infringement has been wrongfully filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. One place to find more information is the U.S. Copyright Office website, currently located at http:www.loc.gov/copyright.

In accordance with the DMCA, Clarkin has designated an agent to receive notification of alleged copyright infringement. Any written Notification of Claimed Infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to our designated agent as follows:

Agent:
Address: 4425 BAYARD ST STE 140, SAN DIEGO CA 92109.
Phone:
Email:

(This telephone number is for copyright-related complaints only. No solicitations.)

Please note: If you materially misrepresent that online material, product, or activity is infringing your copyrights, you may be liable for damages (including court costs, attorneys’ fees and expert fees) and could be subject to criminal prosecution for perjury. We suggest that you consult your legal advisor before filing a notice or counter-notice.

Exclusion of Damages

CLARKIN SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL OR PROPERTY DAMAGE) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICES, BASED ON ANY CAUSE OF ACTION, WHETHER IN WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Limitation of Liability

IF CLARKIN SHALL BE FOUND LIABLE FOR ANY DAMAGES, YOU AGREE THAT SUCH DAMAGES SHALL ONLY INCLUDE ACTUAL DAMAGES INCURRED BY YOU, AND IN NO EVENT, WILL CLARKIN’S LIABILITY ARISING OUT OF, RELATING TO OR CONNECTED WITH THIS AGREEMENT EXCEED ANY PRODUCT OR ERVICE REPLACEMENT COST. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION ARE NOT INTENDED TO ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Waiver of Representative / Class Action Proceedings

BY ENTERING INTO THIS AGREEMENT, YOU KNOWINGLY AND VOLUNTARILY AGREE TO BRING ANY CLAIMS GOVERNED BY THIS AGREEMENT IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF, CLASS MEMBER, OR REPRESENTATIVE IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. YOU THEREFORE AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN ANY REPRESENTATIVE OR CLASS ACTION PROCEEDING RELATED TO ANY CLAIMS ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT.

Force Majeure

Clarkin will not be liable for failing to perform under this Agreement by the occurrence of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to CLARKIN to perform, fire, terrorism, natural disaster or war.

Changes to Services

Clarkin may, in its sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the SERVICES, temporarily or permanently, at any time without notice to you, and Clarkin will not be liable for doing so.

Notices and Electronic Communications

All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. If you give notice to us you must use the following address: CLARKIN COLLECTION, LLC, 4425 BAYARD ST STE 140, SAN DIEGO CA 92109. If Clarkin provides notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if by delivery by U.S. mail, on the date of receipt appearing on a return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. When you use our Services or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Website. Each party agrees that any notice that it receives from the other party electronically satisfies any legal requirement that such communications be in writing.

Limitation of Actions; Law and Venue

You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to or connected with your use of the Services, must: (1) be filed within one (1) calendar year after such claim or cause of action arises, or forever be barred; (2) be decided exclusively under the laws of California, without regard to the principles of conflicts of law; (3) be brought and decided exclusively in the state or federal courts in San Diego County, California; and (4) both parties waive any right either of us may have to assert the doctrine of forum non conveniens or similar doctrine or to object to the venue with respect to any proceeding brought in accordance with this Section. In the event of any controversy, claim, or dispute between you and Clarkin, arising out of, relating to or connected with this Agreement occurs, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys’ fees and costs, including expert and consultant fees.

Integration

This Agreement contains the entire understanding between you and Clarkin regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between us, whether oral or in writing, regarding its subject matter.

Additional Terms

This Agreement is binding upon each party hereto and its successors and permitted assigns. This Agreement and all of your rights and obligations under it is not assignable or transferable by you without the prior written consent of Clarkin. This Agreement governs the relationship between Clarkin and you and does not create any third-party beneficiary rights. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right, power, or privilege under this Agreement. The invalidity or unenforceability of any provision of this Agreement will not invalidate any other provision of this Agreement, all of which will remain in full force and effect. If you reside in or are subject to the laws of a jurisdiction anywhere in the world whose common, statutory, regulatory, or codified law would void this Agreement in whole or in any essential part (the essential parts being at least, but not only, the choice of law and exclusive venue provisions, disclaimers, exclusions and limitations), or which make accessing the Services illegal, you do so entirely at your own risk.

Terms and Conditions