DLUCKY inc. is a marketplace that sells DLUCKY branded merchandise.
All visitors (“user”, “you”, “your”) to the DLUCKY inc. website at www.DLUCKYinc.com (“the website”) are entering a binding legal agreement on the following Terms when using the website. This agreement is between the user and DLUCKY inc. (TP Apparel, LLC) and use of this website indicates continued acceptance of these Terms.
Our services are available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Our services are not available to persons under 16 years of age.
AMENDMENT TO THESE TERMS
We may amend these Terms from time to time, and we will let you know about these changes either by sending you an e-mail to the e-mail address you have registered with DLUCKY inc. or by displaying information about the changes on our home page, or both. Either way, your continuing use of the website will be taken to be an acceptance of the new Terms.
DLUCKY inc. provides a range of services (the “DLUCKY inc. service”) which, amongst other things, enables you to publish, sell, discuss, and purchase art; interact with other members; and receive the benefits of DLUCKY inc.’s facilitation of product fulfilment, which include payment processing, customer services, and third-party product manufacturing. In addition, DLUCKY inc. will arrange for the delivery of the physical product to your customer.
The digital content on the website (“your content”) may be information, text, data, graphics, images, photographs, sound, video, or any other material posted online by users. Any content that you upload to your account’s storefront is described as your “art”. Your art may be viewed by all users of the website once you elect to publish it. You may order a physical product based on your own art or you may offer your art for sale as part of the sale of a physical product. If you or a customer decide to place an order, then DLUCKY inc. will forward your instructions to third parties who will manufacture and ship the physical product in the form specified by you or the customer (“the product”).
You can become a registered member (“member”) of the website by setting up a password-protected account. You will be required to select a username and password when registering to become a member. You must become a member before placing any content on the website, including participating in forums or reviews. In its sole discretion, DLUCKY inc. may refuse any user name that it decides is inappropriate and/or refuse any person from becoming a member.
You are responsible for actions made on the website using your password, including any products purchased or sold and any content displayed or messages sent, even if these actions were not approved or contemplated by you. You are solely responsible for any loss caused by any use of your password by you, or any other person.
You agree that you will not disclose your password to any other person and you will not keep your password where it can be copied or used by anyone other than you. If you suspect someone else knows your password, you must change it immediately.
PUTTING CONTENT ON DLUCKY INC.
You keep the copyright in any content you submit or upload to the website. In order to receive the DLUCKY inc. services you grant DLUCKY inc. a non-exclusive, royalty-free license to use and archive the content in accordance with or as reasonably contemplated by these Terms.
When you submit or upload content on the website you represent and warrant that:
- you own all copyright in the content, or if you are not the owner, that you have permission to use the content, and that you have all of the rights required to display, reproduce and sell the content;
- the content you upload will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or rights of privacy or publicity;
- your use of the website will comply with all applicable laws, rules, and regulations;
- the content does not contain material that defames or vilifies any person, people, races, religion or religious group and is not obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
- the content does not include malicious code, including but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information; and
- the content is not misleading and deceptive and does not offer or disseminate fraudulent goods, services, schemes, or promotions.
- DLUCKY inc. reserves the right to review and, if in its sole discretion deemed necessary, remove any content from the website and/or cancel your account, should that content be found to breach your agreement with us and/or any applicable laws or otherwise. You agree to indemnify DLUCKY inc. in respect of any direct or indirect damage caused due to your breach of one or more of these warranties.
Delivery will be facilitated pursuant to the customer’s instructions by postal or courier service and will be paid for by the customer at the price indicated at the time of purchase. DLUCKY inc. will charge shipping charges to the customer which will vary depending upon the size, price, and location of the product.
You agree to indemnify, defend, and hold us, our officers, directors, employees, agents, and representatives harmless, as well as, all third parties printing, manufacturing and/or otherwise fulfilling the products you are selling via the website, their officers, directors, employees, agents and representatives harmless from and against any and all claims, damages, losses, liabilities, costs (including reasonable legal fees) or other expenses that arise directly or indirectly out of or from:
- your breach of any clause of these Terms;
- any allegation that any materials that you submit to us, or transmit to the website, infringe or otherwise violate the copyright, trademark, trade secret, or other intellectual property or other rights of any third party; and/or
- your activities in connection with the website.
This indemnity will be applicable without regard to the negligence of any party, including any indemnified person.
SECURITY OF INFORMATION
No data transmission over the Internet can be guaranteed as totally secure. We strive to protect such information, however we do not warrant and cannot ensure the security of any information that you transmit to us. Accordingly, any information that you transmit to us is transmitted at your own risk.
TERMINATION OF ACCESS
Access to this website may be terminated at any time by us without notice. Our disclaimer will nevertheless survive any such termination.
You agree that any disputes arising from our Terms, or relating to your use of any part of the DLUCKY inc. service, will be exclusively resolved under confidential binding arbitration held in San Francisco, California. All disputes will be resolved in accordance with the rules of ADR Services, Inc. and California law, without regard to conflicts of law principles.
You and DLUCKY inc. agree to submit to the personal and exclusive jurisdiction of the federal and state courts in San Francisco County for purposes of enforcing any arbitration award. Notwithstanding the foregoing, DLUCKY inc. may seek injunctive or other equitable relief from a court of competent jurisdiction. You and DLUCKY inc. agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You and DLUCKY inc. agree that any cause of action arising out of or related to the DLUCKY inc. site (including but not limited to any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
If you have a dispute with one or more users or sellers, you release DLUCKY inc. (and DLUCKY inc. officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands, and damages (actual and consequential) of every kind of nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542 which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
We accept no liability for any failure to comply with these Terms where such failure is due to circumstances beyond our reasonable control.
If we waive any rights available to us under these Terms on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
If any of these Terms are held to be invalid, unenforceable or illegal for any reason, the remaining conditions shall nevertheless continue in full force.
You may close your account at any time by e-mailing community@DLUCKY inc..com and letting them know you want your account closed. We will then delete your account accordingly.
APPENDIX A – SERVICES AGREEMENT
You wish to use DLUCKY inc.’s services to facilitate marketing and sale of your art on a physical product and to arrange for the manufacture of the physical product (“your product”) once an order has been made through www.DLUCKY inc..com (“the website”). DLUCKY inc. will provide these services on the terms set out in this Services Agreement. Additionally, DLUCKY inc. will provide for delivery of such products to the customer.
1.1 DLUCKY inc., acting as independent contractor under your instructions in relation to the performance of marketplace services, will market to and obtain orders from customers for the purchase of your products over the website and on instruction from you. DLUCKY inc. will arrange for third parties to fulfil those orders by facilitating payment for and manufacture of your products (“Services”). DLUCKY inc. will then arrange for the delivery of your products as per the customer’s instructions. Whilst DLUCKY inc.’s capacity is one of independent contractor in relation to the Services, it acts as your agent specifically in relation to the sales transaction between you and the customer who buys your product – see further clause 5.2 below.
1.2 DLUCKY inc. will provide the Services pursuant to this agreement until termination in accordance with its terms.
1.3 You agree that DLUCKY inc. is free to act in any capacity for any other person interested in promoting, marketing, and obtaining orders from members of the public for the purchase of their arts over the website, including any art that is the same as, or similar to, your products.
2. License and standing instructions
2.1 You grant DLUCKY inc. a non-exclusive royalty free license to use your intellectual property relating to your products for the purpose of enabling us to carry out the Services.
2.2 You hereby instruct DLUCKY inc. to facilitate the sale of your product which includes payment, processing, and arranging for manufacturing your product(s) in respect of the orders placed by the customers via the website, and DLUCKY inc. will facilitate such payment, and manufacturing in accordance with reasonable business practices unless you otherwise instruct prior to the placement of that order by a customer.
3. Sale of your products
3.1 The retail price charged to customers who purchase your product is a flat, marketplace-wide price made up of the manufacturing fee charged by the third party manufacturer, DLUCKY inc.’s fee for hosting the marketplace and facilitating the transaction (the manufacturing fee and DLUCKY inc.’s fee are referred to collectively, and inclusive of tax, as the “base amount”), your designer’s margin (“your margin”), and any relevant sales tax (such as Sales Tax, GST, VAT, etc) that DLUCKY inc. and/or you (as the case may be) are liable to account for to the appropriate tax authorities. Shipping charges will also be added to the retail price.
3.2 The marketplace-wide retail price of a product may change at any time without specific notice to you, including when a product is discounted during the first 72 hours you offer it for sale, during a sitewide sale, or when you are featured. The retail price will not change on an individual sale after a customer has submitted an order to the website.
3.3 DLUCKY inc. will send you an e-mail to the e-mail address you registered in your account to notify you when an order has been placed for your products.
3.4 You agree that DLUCKY inc. makes no representation that it will be able to procure an order for your products, whether at the retail price or at all, nor that you will obtain any benefit by entering into this Services Agreement.
3.5 All items purchased from the website are manufactured pursuant to arrangements with third party suppliers under your instructions. This means that title and risk for loss for such items pass from you to the customer/purchaser without passing through us prior to the goods being delivered to the customer under the customer’s instructions.
4. Payment terms
4.1 You authorize DLUCKY inc. to collect, hold, and distribute the retail price (“sale proceeds”) from customers on the terms set out in this Services Agreement. DLUCKY inc. will also charge the customer for the shipping which will be retained by us and not affect the amount to be distributed to you.
4.2 You authorize DLUCKY inc. to deduct the base amount (which includes DLUCKY inc.’s margin for facilitation services, including tax where applicable) from the sales proceeds for your products before distributing your earnings (which will include tax where applicable).
4.3 We will pay your earnings in accordance with the payment method you select on your account—currently either PayPal or Payoneer. Payments will be processed on the 15th day of the month, for sales made during the previous calendar month. For example, earnings for sales made during the month of February will be paid out on March 15th.
4.4 If the 15th of the month falls on a weekend or national holiday, payments will be processed on the nearest business day.
4.5 If your selected payment method is Payoneer, we will set a payment amount threshold of $20 USD in order to properly process the payment. Where the payment amount does not exceed the applicable threshold, DLUCKY inc. may elect to postpone your payment until the next monthly payment day when the threshold is exceeded.
4.6 It is your responsibility to ensure DLUCKY inc. has current details of your postal address and bank account details. DLUCKY inc. will not be liable for any loss suffered by you if you provide us with incorrect details in relation to the payment method. If we are unable to pay you because you have given us incorrect details or your details are out of date, we will hold your earnings for up to twelve (12) months from the payment date. If you have not notified DLUCKY inc. of any amendment to the payment method details in that time your proceeds will be forfeited to DLUCKY inc. or donated to a charity of our choice.
5. Taxation responsibility
5.1 Each sale of a product over the DLUCKY inc. marketplace is completed between: (1) you the artist as the seller of the product; and (2) the customer as buyer of the product. In respect of each such transaction, DLUCKY inc. is merely acting as your agent in facilitating the sale of your product to the customer.
5.2 Subject to clause 5.3:
(a) the amounts distributed to you will be deemed to be inclusive of any taxes and each party is responsible for their own taxes associated with each transaction or arising out of, as a result of, incidental to, or in connection with their obligations under this Services Agreement; and
(b) you as seller of products over the DLUCKY inc. marketplace, will:
- account for any transactional taxes imposed pursuant to applicable local tax laws or regulations;
- satisfy all related accounting or audit requirements; and
- at all times be solely responsible for reporting and remitting any tax liabilities arising out of the sale of your products together with any potential interest or penalties that any tax authority may levy as a result of non-compliance.
Applicable taxes may include Sales Tax, VAT, GST and other transactional taxes. If you are registered for VAT in the EU, DLUCKY inc. may, upon your request, provide you with a VAT invoice for any charges levied by us. DLUCKY inc. recommends that you consult with your tax advisor as to the application of taxes for you the artist, as the seller of products over the marketplace.
5.3 DLUCKY inc. will only collect or pay taxes associated with a transaction on your behalf if and to the extent that applicable local tax laws or regulations require DLUCKY inc. to do so. If that is the case, then you authorize DLUCKY inc. to pay such taxes on your behalf. Further details can be found here.
6.1 You hereby indemnify and will keep DLUCKY inc. indemnified from and against all claims, debts, accounts, expenses, costs, liens, actions, and proceedings of any nature whatsoever, whether known or unknown by any person, arising from, incidental to, or by virtue of, the appointment, or any breach or non-performance of your obligations under this Services Agreement or arising out of your willful act, neglect or default in the performance of such obligations.
This clause 6 will survive the termination of this Services Agreement.
7. Limitation of liability
7.1 In no case will DLUCKY inc. be liable for any consequential loss or damage suffered by you arising from this Services Agreement. To the extent permitted by law, all warranties and conditions implied by law are hereby expressly excluded.
8. Terminating this agreement
8.1 You can give notice of termination of this Services Agreement by closing your account in the method described in the Terms & Conditions.
8.2 DLUCKY inc. may give notice of termination of this Services Agreement to you in writing at any time.
8.3 After notice of termination in the manner described in either clause 8.1 or 8.2, you authorize us to complete any transactions in progress in relation to your products, which we will do on the terms of this Services Agreement. Termination of this Services Agreement will take effect once these transactions have been completed.