Quirky.com

User Terms of Use (BETA)

Date of Last Revision: January 14, 2010 (Effective March 1, 2010)

Welcome to quirky.com, a web site that lets users submit product ideas for feedback from the Quirky community of Users (the “Community”). The web site is first and foremost designed to facilitate and provide general market research data and information to individuals or entities that submit a product idea. However, selected product ideas will further be developed by the Community and may ultimately be commercialized, produced and sold by Quirky. The quirky.com web site and its associated services (the “Services”) may be found at the domain and its related subdomains found at www.quirky.com (the “Site”). The Site is owned and operated exclusively by Quirky, Inc., a Delaware corporation, and its corporate affiliates (collectively referred to herein as “Quirky”, "us", "we" or "the Company"). By creating a user account and/or accessing or using the Site or by posting any Content on the Site, you represent and warrant that you have read, understand and agree to be bound by these User Terms of Use ("Terms of Use" or "Agreement”). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or any future Terms of Use, do not use or access (or continue to use or access) the Site or the Services. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU MAY BE TRANSFERRING VALUABLE INTELLECTUAL PROPERTY RIGHTS TO QUIRKY FOR ITS COMMERCIAL USE.

Basic Description of User Participation on the Site

The Site is developed and operates using a variety of terms and phrases. The more commonly used terms are defined in more detail below. To summarize generally how the Site functions:

· Product Ideas are submitted by Users.

· The Community evaluates submitted Product Ideas and the Company may, at its sole discretion, taking into consideration a variety of factors, including the Community input select a Product Idea for development and/or commercialization, production and sale.

· Users who submit Product Ideas will receive detailed analytics related to User feedback and input for that Product Idea, which may be used as a form of market research.

· Selected Product Ideas will be subject to one or more Phases, each of which is targeted to get Community ideas, suggestions and input related to a specific aspect of the development of the Product Idea (e.g. the selection of a name, or the color scheme for product).

· For each Phase, Users post their suggestions or ideas to solve or address the problem presented in that Phase.

· Users are credited with “Influence” on a particular Product Idea through their participation on the Site, including submitting Product Ideas, evaluating Product Ideas and participating in Phases.

· Once all the Phases related to a Product Idea are completed, the Product Idea is submitted to the marketplace and the Product Idea is presold to a threshold number of buyers. Assuming that the threshold is reached, the Company may then manufacture the Product Idea and continue to sell the commercialized version of the Product Idea.

· The Company will distribute a portion of all revenue generated from the sale of a commercialized version of a Product Idea, selected and developed through the Site, to those User’s who participated in the development of the Product Idea, in proportion to each User’s Influence, which is determined through the Company’s proprietary and confidential algorithms.

THE SELECTION, DEVELOPMENT, MANUFACTURE AND SALE OF ANY PRODUCT IDEA IS SUBJECT TO THE COMPANY’S SOLE AND ABSOLUTE DISCRETION AND THE COMPANY RESERVES THE RIGHT, FOR ANY OR NO REASON, TO (I) REJECT ANY SUBMITTED PRODUCT IDEA, (II) REFUSE TO POST ANY SUBMITTED PRODUCT IDEA TO THE SITE, (III) TERMINATE THE DEVELOPMENT OR ANY PHASE RELATED TO A PRODUCT IDEA, (IV) TERMINATE THE SALE AND OR MANUFACTURE OF ANY COMMERCIALIZED PRODUCT RELATED TO ANY PRODUCT IDEA, OR (V) SELL OR LICENSE A PRODUCT IDEA, AND/OR ANY INTELLECTUAL PROPERTY RELATED THERETO, TO ANY THIRD PARTY.

Commonly Used Terms and their Definitions

All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following Terms shall have the meaning listed below:

“Accepted Product Idea” means any Product Idea that is selected by the Company for development and/or commercialization.

“Idea Submitter” means any User that pays to submit a Product Idea to the Site.

“Influence” is the measure of a User’s contribution to a Product Idea, as determined solely at the discretion of the Company.

“Intellectual Property Rights” means any Invention, writing, trade name, trademark, service mark, mask work or any other material registered or otherwise protected or protectable under state, federal, or foreign patent, trademark, copyright, or similar laws.

“Inventions” includes ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.

“Product Idea” means a product concept, design or idea that is submitted by a User to the Site as a Product Idea.

“Product Sales Revenue” is the total gross revenue actually received by the Company from the sale, license, distribution or marketing of a manufactured and delivered commercialized product that originates out of a particular Accepted Product Idea, less all returns, warranty claims, charge backs and other direct offsets against gross revenue during the applicable period related to that specific product whether from a Retail Sale or a Wholesale Sale. Product Sales Revenue shall be calculated on a calendar year quarterly basis and the Company will make distributions within 90 days thereafter of Product Sales Revenue from a Retail Sale or a Wholesale Sale, as the case may be, to those Users who are allocated a percentage of such revenue as provided for herein.

“Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party.

“Person” means any individual, trust or legal entity.

“Rejected Product Idea” means any Product Idea that is not selected by the Company for development and/or commercialization.

“Retail Sale” shall mean a sale to an end user by the Company or any subsidiary or affiliate of the Company resulting in Product Sales Revenue.

“User” is anyone that creates an account online and is registered to post Content on the Site and includes all other Persons who participate on the Site other than the Company.

“User Content” includes all information that a User may transmit to the Site and which may become available for use or display, including without limitation all designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format.

“Wholesale Sale” shall mean a sale to an end user by anyone other than the Company or any subsidiary or affiliate of the Company resulting in Product Sales Revenue.

Quirky Control of the Site and Services

You acknowledge that Quirky is a service provider that has created the Site to allow Users to interact via the Site regarding topics and content chosen by Users, and that Users can alter the information presented on the Site on a real-time basis. Quirky generally does not regulate the content of communications between Users or Users' interactions with the Service. As a result, Quirky has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of Content provided by Users. Nonetheless, Quirky reserves the right to monitor and/or limit any Content posted by a User to the Site, including, without limitation Product Ideas.

Other Parties Rights in Content

You acknowledge that: (i) by using the Site you will have access to Content provided by other Users, and (ii) Content may be provided under license by independent content providers, including contributions from other Users. The Company may not pre-screen Content submitted by Users to the Site. You acknowledge that the Company and other Users have rights in their respective Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Service or posting on the Site. You accept full responsibility and liability for your use of any Content in violation of any such rights. You agree that your creation or submission of any Content is not in any way based upon any expectation of compensation from the Company or any other Users.

Media Waiver.

You agree that the Company has the absolute right and permission to use your name, voice, image, likeness, and your applicable User compensation information, including for example any commisions paid and your Influence percentage, as well as representations made by you, in any media (including, without limitation, television, print, radio and the Internet), world-wide, for the purposes of advertising, promoting, reporting and disseminating information about the Company, the Company’s business or an Accepted Product Idea.

"Influence" is a Limited License Right allocated to Users at the Company’s Sole and Absolute Discretion.

You acknowledge that the Service presently includes a component of referred to as “Influence”, which constitutes a limited license right to participate in the revenue stream, if any, generated from the successful commercialization of a Product Idea through the Site. Quirky may distribute or allocate Influence among new and existing Users, at its sole and absolute discretion. Regardless of terminology used in the Site or otherwise, Influence represents a limited license right governed solely under the terms of this Agreement, and are not redeemable for any sum of money or monetary value from Quirky or any other Person, at any time. You agree that Quirky has the absolute right to manage, regulate, control, modify and/or eliminate Influence, collectively or individually, as it sees fit in its sole discretion, in any general or specific case, and that Quirky will have no liability to you based on its exercise of such right. Each User acknowledges and agrees that Product Sales Revenue will be allocated to a User based upon their allocated Influence with respect to a particular Accepted Product Idea. The Company makes no representations or warranties that allocated Influence will accurately reflect a User’s contribution towards the successful commercialization of an Accepted Product Idea.

Payments by Users for Market Research Data

The Site has been created primarily to provide low-cost market research to a Person with respect to Product Ideas. An Idea Submitter must pay the advertised fee to submit a Product Idea to the Community. The Site will collect and organize feedback received from the Community with respect to each Product Idea and will provide the results to the Idea Submitter. The Company makes no representations or warranties regarding the volume or quality of any feedback provided and each Idea Submitter acknowledges and agrees to bear the risk that Users may not provide any meaningful feedback with respect to a Product Idea.

Payments by the Company to Users

While one aspect of the Site is to provide Users, including Idea Submitter’s with the right to share in Product Sales Revenue, User’s should not participate on the Site or in the Service primarily for financial gain, as any actual monetary compensation actually received by a User in connection with the Site, may or may not bear any relation to the actual time invested on the Site, or the quality or quantity of Content submitted, or Influence allocated. The Company will make 30% of Product Sales Revenue from Retail Sales and 10% of Product Sales Revenue from Wholesale Sales available for distribution to those User’s who are allocated Influence in the underlying Accepted Product Idea generating the Product Sales Revenue. This amount will be distributed to 40% to the Idea Submitter and the remaining 60% to the Users who are allocated “Influence” with respect to that particular Accepted Product. The Company will make a referral payment to Users who referrer customers to the Company at a rate of 10% of the Product Sales Revenue generated from Retail Sales directly attributable to such referrals. In order to be eligible to receive such referral payments, the customer generating the Product Sales Revenue from the Retail Sale on which such referral payment is to be made must complete the referral section on the purchase order identifying the referring User at the time of the customer’s order. . In addition to the foregoing, the Company will make a referral payment to Users who referrer Idea Submitters to the Company at a rate of 20% of the fees generated by the Company in connection with the referred Idea Submitter’s posting of a Product Idea. In order to be eligible to receive such referral payments, the Idea Submitter generating the fees on which such referral payment is to be made must complete the referral section on the Product Idea submission to the Company at the initial time of the Product Idea submission. In no event will a User be credited for any referral payments unless they are specifically identified at the time a sale. Because the Company may elect in its sole discretion to cease commercializing any Accepted Product Idea, there can be no guarantee that you will ever receive any payments or actual compensation in connection with participating on the Site or providing Content even if you participate or provide Content. Quirky makes no representations or warranties regarding any actual monetary compensation that may be earned in connection with use of the Site or the Service. Quirky’s obligation to pay to Product Sales Revenue to Users, who are allocated such amounts pursuant to the Site, is limited to paying our Product Sales Revenue that is actually received by Quirky. Notwithstanding any Product Sales Revenue that may be allocated to your account, Quirky shall be under no obligation to distribute such amount to you until such time as the aggregate amount payable in your account exceeds $75. The Company will calculate all payments owed by the Company to a User as set forth above, on a daily basis, based on the previous day’s sales of a Accepted Product Idea. All amounts earned by a User shall be rounded down to the nearst tenth of cent. If the total amount that a User earns from aggregate sales (including Retail Sales and Wholesale Sales by the Company) of an Accepted Product Idea for the previous day is less than a tenth of penny (e.g. $.001) then such amount shall be rounded down to zero and no amount will be credited to the User. On an annual basis, Quirky reserves the right to reset all User accounts below $75 to $0 and to write-off all such unpaid amounts and Quirky shall have no liability for any such write-offs. Quirky also reserves the right to withhold or forfeit payments due to any User that has breached this Agreement or any of the other guidelines related to use of the Site. The Company will make payments to Users by check, ACH, wire transfer (fee assessed to User) or through any other commercially reasonable manner adopted by the Company from time to time.

Tax Withholding and Quirky Payee Information Form

You acknowledge and agree that you be responsible for all taxes due on any payments made to you in connection with your participation on the Site. The Company will be under no obligation to make any payments to you unless you have properly completed and submitted the Quirky Payee Information Form (the “QPIF”) and the information required in the registration process related to backup withholding taxes. Backup withholding taxes are a type of withholding for federal income taxes on certain types of income. Quirky may be required by law to withhold these taxes from amounts payable to you unless you are otherwise exempt from backup withholding. US citizens and resident aliens will be typically be exempt from backup withholding if they properly report their name and Social Security number to Quirky on the QPIF and that information matches the IRS records,

Service Interruptions and Site Changes.

Quirky reserves the right to interrupt the Site with or without prior notice for any reason or no reason. You agree that Quirky will not be liable for any interruption of the Site, delay or failure to perform. Quirky has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site and/or the Service as it sees fit in its sole discretion.

Fees.

Certain aspects of the Site, such as posting a Product Idea, may be for a fee or other charge. These fees and charges are described on the Site, and in the event you elect to use paid aspects of the Service, you agree to the pricing, payment and billing policies applicable to such fees and charges, posted on the Site. Quirky may add new services for additional fees and charges, or proactively amend fees and charges for existing services, at any time in its sole discretion. All fees paid to the Company are solely for services provided by the Company through the Site and no payments made in connection with the Site should be made with any expectation to by a User to receive any return payment, including any portion of Product Sales Revenue, from the Company.

Eligibility

Participation in the Site is void where prohibited. This Site is intended solely for users who are eighteen (18) years of age or older. Any registration by, use of or access to the Site by anyone under 18 is unauthorized, unlicensed and in violation of these Terms of Use. By using the Service or the Site, you represent and warrant that you are 18 or older, and that you agree to and to abide by all of the terms and conditions of this Agreement.

Registration Data; Account Security

In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

Proprietary Rights in Site Content; Limited License

All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are the proprietary property of the Company, its Users or other licensors, with all rights reserved. No Site Content may be modified, copied, distributed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission, except that the foregoing does not apply to User Content (as defined below) that is legally posted on the Site, which is addressed in more detail in the section below titled “Ownership of User Content.” Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your own personal use, in connection with participating on the Site, during the duration of the development of an Accepted Product Idea for which such Site Content was originally posted. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms of Use and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to Intellectual Property Rights, whether by estoppel, implication or otherwise. This license is revocable at any time by the Company without notice and with or without cause.

Ownership of User Content.

All Content legally posted to the site by Users, that is in compliance with this Agreement and other guidelines that may be posted by the Company from time to time shall referred to as “User Content.”

The Company and each User that is a party to this Agreement acknowledges and agrees that, subject to the terms and conditions of this Agreement, Users may retain any and all applicable copyright and other Intellectual Property Rights with respect to any User Content that you create or submit using the Service, to the extent you have such rights under applicable law.

Notwithstanding the foregoing, you understand and agree that by submitting User Content to any area of the Site, you automatically grant (and you represent and warrant that you have the right to grant) to the Company: (a) a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive right and license to use, reproduce and distribute your User Content within the Service, as permitted by you through your interactions on the Service, (b) the perpetual and irrevocable right to delete any or all of your User Content from the our servers and from the Site, for any reason or no reason, whether intentional or unintentional, and, without any liability of any kind to you or any other party; and (c) a royalty-free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to copy, analyze and use any of your User Content as the Company may deem necessary or desirable for purposes of debugging, testing and/or providing support services in connection with the Service. Further, you agree to grant to Company a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your account information, including any data or other information generated by your account activity, in any media now known or not currently known, in accordance with our privacy policy as set forth below.

In connection with any Accepted Product Idea, to the extent that you submit Content in connection with that Accepted Product Idea and your Content is incorporated or made part of any commercialized version of that Product Idea, you hereby assign, and agree to deliver such additional assignments or other instruments of transfer as may be reasonably requested by the Company, all of your right, title and interest in such Content, including without limitation all Intellectual Property Rights. You further agree that you will not make any claims against the Company or any third party who is assigned or licensed rights in such Content by the Company, based on any allegations that any activities by the Company or such third party infringe your (or anyone else's) Intellectual Property Rights in such Content. You further acknowledge and agree that in connection with any such assignment you reserve no rights whatsoever and the Company shall have the right to enforce all Intellectual Property Rights in such Content against you and any subsequent use by you of such Content. You further acknowledge and agree that any compensation that you might receive as a result of submitting such Content and its inclusion in a successfully commercialized Product Idea, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting Content on the Site. The provisions of this Section may be specifically enforced by either the Company or any third party who is assigned or licensed rights in such Content by the Company, and any such third party is intended to be a third party beneficiary of this provision.

You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Site, including without limitation any legal consequences relating to your or any other Person’s Intellectual Property Rights or Proprietary Information; and (iii) Quirky’s acknowledgement hereunder of your Intellectual Property Rights in your User Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of the Company’s intention not to require Users of the Site to forego certain Intellectual Property Rights with respect to Content they submit to the Site, subject to the terms of this Agreement, including without limitation each User’s agreement to assign all right, title and interest in Content that is included in successfully commercialized Accepted Product Idea.

Quirky retains ownership of User account data, regardless of any Intellectual Property Rights in User Content.

You agree that even though you may retain certain copyright or other Intellectual Property Rights with respect to User Content that is submitted on the Site. You do not own the account you use to access the Site, nor do you own any data Quirky stores on its servers (including without limitation any data representing or embodying any or all of your User Content). Your Intellectual Property Rights in any User Content, if any, do not confer any rights of access to the Site, the Service or any rights to data stored by or on behalf of the Company.

Trademarks

“QUIRKY” and other Quirky graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Quirky in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Quirky and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

Conduct by Users; Prohibited Conduct

You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Site any Content that infringes or violates any third party rights, including without limitation all Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) impersonate any person or entity without their consent, including, but not limited to, a Quirky employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iii) take any action or upload, post, e-mail or otherwise transmit to or via the Site any Content that violates any law or regulation; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Site any Content as determined by Quirky at its sole discretion that is harmful, threatening, abusive, harassing, causes tort, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (v) take any actions or upload, post, e-mail or otherwise transmit to or via the Site any Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) take any action or upload, post, email or otherwise transmit to or via the Site any Content that would violate any right or duty under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (vii) upload, post, email or otherwise transmit to or via the Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (viii) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (ix) attempt to gain access to any other User’s account or password; or (x) "stalk", abuse or attempt to abuse, or otherwise harass another user; (xi) charge any third party for use of the Site or the Services; or (xii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Site or any of its algorithms that are utilized to allocate Influence. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any amounts otherwise due to you from the Company.

Copyright Infringement Complaints

We respect the intellectual property rights of others and we prohibit Users from uploading, posting or otherwise transmitting on the Site or via the Service any materials that violate another party's Intellectual Property Rights or that constitutes another Person’s Proprietary Information. Any infringing materials posted by any User can be identified and removed pursuant to Quirky’s Digital Millennium Copyright Act (the “DMCA”) compliance process, which may be found on the Company’s Site, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.

Repeat Infringer Policy

In accordance with the DMCA and other applicable law, Quirky has adopted a policy of terminating, in appropriate circumstances and at Quirky’s sole discretion, Users who are deemed to be repeat infringers. Quirky may also at its sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any Intellectual Property Rights or who disclose Proprietary Information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise are or may become due from the Company to any User, who has submitted User Content that infringes any Intellectual Property Rights or discloses Proprietary Information of any other Person is subject to forfeiture, at the sole discretion of the Company.

Monitoring User Content

Quirky is not responsible or liable in any manner for any User Content posted on the Site or in connection with the Service. Although we provide rules for user conduct and postings, we do not control and are not responsible for what Users post, transmit or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content. The Company is not responsible for the conduct, whether online or offline, of any User of the Site or Service.

Disputes Between Users

As a condition of access to the Site and the Service, you release Quirky (and Quirky’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Users of the Site; including, without limitation, any claim that another User infringes upon your Intellectual Property Rights in any User Content that you may provide. You further understand and agree that: (a) Quirky will have the right but not the obligation to resolve disputes between Users relating to the Service, and Quirky’s resolution of any particular dispute does not create an obligation to resolve any other dispute; (b) to the extent Quirky elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the Service and will not make judgments regarding legal issues or claims; (c) Quirky’s resolution of such disputes will be final with respect to the Site, any allocation of Influence or the allocation of any payments due to Users related to the foregoing, but will have no bearing on any real-world legal disputes in which Users of the Service may become involved; and (d) you hereby release Quirky (and Quirky’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Quirky’s resolution of disputes relating to the Site or the Service.

All Data on the Company’s Servers is subject to Deletion, Alteration or Transfer

When using the Site or the Service, you may accumulate Content, Influence, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON QUIRKY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN QUIRKY’S SOLE DISCRETION. Notwithstanding the foregoing, the Company will maintain back-up records related to any actual accumulated unpaid cash amounts earned by Users, and to the extent such information is deleted or otherwise altered, the Company will use its best efforts to accurately recreate such information to satisfy its payment obligations.

YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE WITH RESPECT TO CONTENT YOU POST ON THE SITE, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, QUIRKY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE COMPANY’S SERVERS.

YOU UNDERSTAND AND AGREE THAT QUIRKY HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOUR CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH ANY LIABILITY OF ANY KIND.

All Services are Provided "as is" Without Express or Implied Warranties.

QUIRKY PROVIDES THE SITE, THE SERVICE, YOUR ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN "AS IS" BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Without limiting the foregoing, the Company does not ensure continuous, error-free, secure or virus-free operation of the Service, the Site or your account, and you understand that you shall not be entitled to make any claim based on Quirky’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.

All Services Provided and Sales Made on “as is”, no refund basis.

THERE WILL BE NO REFUNDS FOR ANY REASON. ALL SALES MADE BY THE COMPANY ARE FINAL AND ARE MADE WITHOUT ANY GUARANTEE. BY MAKING A PURCHASE WITH THE COMPANY, YOU HAVE READ AND UNDERSTAND OUR NO REFUNDS POLICY. Notwithstanding the foregoing, the company will refund fees paid to post a Product Idea if the such idea is rejected by the Company and not posted to the Site for Community review and feedback.

Quirky’s liability to you is expressly limited, to the extent allowable under applicable law.

IN NO EVENT SHALL QUIRKY OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE OR THE SITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL QUIRKY’S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).

Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Quirky cannot be held responsible or liable for anything that occurs or results from accessing the Site or participating in the Service.

Indemnification.

You hereby agree to defend, indemnify and hold harmless Quirky, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns and other Users of the Service, from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any breach of this Agreement by you, or from your use of the Service. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors, successors and assigns from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from any claims by third parties that your activity on the Site or Content infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.

Privacy Policy

The personal information you provide to us during registration is used for the Company’s internal purposes only. Quirky uses the information it collects to learn what you like and to improve the Service. Quirky will not give any of your personal information to any third party without your express approval except: as reasonably necessary to fulfill your service request, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to comply with tax and other applicable law; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; or as otherwise necessary to protect the Company, its agents and other users of the Service. Quirky does not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties. Quirky can (and you authorize Quirky to) disclose any information about you to private entities, law enforcement agencies or government officials, as Quirky, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. You agree that Quirky may communicate with you via email and any similar technology for any purpose relating to the Site. You acknowledge and agree that Quirky, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Service. The Company may share general, demographic, or aggregated information with third parties about its Users and their Content and Site usage, but that information will not include or be linked to any personal information without your consent.

Dispute Resolution; Governing Law; Venue and Jurisdiction

By visiting or using the Site and/or the Service, you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and the Company or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of the State of New York, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of the State of New York.

YOU AND THE COMPANY AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC SERVICES ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE SERVICES, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SITE AND/OR THE SERVICE (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICE) SHALL BE FINAL AND BINDING ARBITRATION, except that to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party's Intellectual Property Rights, or you have otherwise violated any of the user conduct rules set forth above then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, the Company will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Service (including your visit to or use of the Site and/or the Service) be instituted more than three (3) years after the cause of action arose.

General Provisions

The Site and the Service is controlled and operated by Quirky from its offices within the United States of America. The Company makes no representation that any aspect of the Service is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Service from other locations are responsible for compliance with applicable local laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Service and its use.

The Company’s failure to act with respect to a breach by you or others does not waive Quirky’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Quirky under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Quirky’s rights and obligations under this Agreement may be assigned to a subsequent owner or operator of the Site and/or the Service in a merger, acquisition or sale of all or substantially all of the Company’s assets. You may not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Quirky shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Quirky.

This Agreement sets forth the entire understanding and agreement between you and Quirky with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

Quirky may give notice to you by means of a general notice on our website, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under this Agreement shall be mailed to us at legalnotice@quirky.com.