Terms of service: an agreement between you and brainchildmerch to enter and use this
website and services
Welcome to the brainchildmerch website and services.
We hope you enjoy your use of our facilities. Please appreciate and understand
that this is a legal world and that you, by not immediately leaving this website
now or immediately after reading our terms of service are accepting our services
under the terms of this agreement.
It is your obligation to keep your self informed of any changes that may occur
between visits, as using our services each time is under the condition that you
accept all our terms and conditions. We may change our terms and conditions from
time to time without expressly informing you.
1 brainchildmerch Services:
2 Using our brainchildmerch Services and Website:
- Create, design, customize products that are listed for sale.
- Buy products that are listed for sale
- Save and share designs that your may have created.
- Use our fun picture and design tools.
- Save created images and designs into public and personal galleries.
- Post your created images to social networks or bloggs that you have the
legal right to do so
- Registering to subscribe to special offers and use of galleries.
In consideration of the promises and obligations given and assumed herein, and
2.1 ELIGIBILITY CHILDREN UNDER 18.
brainchildmerch will only knowingly provide products or services to persons who can
lawfully enter into and form contracts under applicable law.
If you are under the age of 18, but at least 13 years of age, you may order
products or services only under the supervision of a parent or legal guardian
Children under the age of 13 may view the Website but MAY NOT ORDER PRODUCTS OR
2.2 Definitions and Interpretation
3 User's Obligations
- Intellectual Property Rights means all industrial, commercial and
intellectual property rights (including equivalent, neighbouring or
proximate rights anywhere in the world that currently exist or are
recognised in the future).
- A person means any form of legal entity as well as any quasi-legal entity.
- A User means any person using the website and/or services provided by Piki
- A reference to any document, material, information or data includes that
document, material, information and data howsoever stored, recorded or
embodied, including in any electronic or digital media or otherwise.
- The word includes in any form is not a word of limitation.
Users are and shall be wholly and exclusively responsible, at their own cost,
3.2 Restrictions on Users
- all telecommunications lines, modems, communication controllers, routers,
multiplexers, terminals and all other equipment, hardware and software
necessary to access and use the Website and services;
- the use that it makes of the Website , including any article, material,
literary or artistic work, design or other matter that they author, invent,
create, develop or produce;
- complying with all laws, regulations and rules in the uses country or
- complying with any recommendations or guidelines issued by brainchildmerch with
respect to the use of the Website and/or services and
- ensuring that all electronic or other media it uses in connection or in
conjunction with the Website and the services provided complies with these
Users shall not and has no right to either:
- reproduce, publish, distribute, sub-license and/or resell either the
Website and/or service to any person; or
- use either the Website to supply any service to any person; or
- modify, adapt, disassemble, recompile and/or reverse engineer either the
Website or service;
- access or use either the Website and/or service to create, author, design,
manufacture, market, publish, transmit, broadcast, distribute or sell any
article, product, material or other matter that either:
- infringes the rights of any person, including, without limitation,
Intellectual Property Rights, trade secrets, rights of privacy and
- is libellous, defamatory or slanderous,
- condones, promotes, contains or links to adware, cracks, hacks or
similar utilities or programs,
- contains explicit sexual content,
- does or may denigrate or offend any ethnic, racial, gender, religious
or other group, through use of language, images, stereotypical depiction
- is designed to or does harass, threaten, defame or abuse others,
- exploits images or the likeness of minors,
- encourages the use of drugs or the under-age use of alcohol or
- is generally offensive or in bad taste;
- use "Spam", "blast-faxes" or recorded telephone
messages to market or sell any products or services,
- use, transfer or implant a virus, routine or any computer program or
technology that disrupts, disables, interferes with or otherwise has a
detrimental affect on the Website and/or the PIKIWAREÂ® Platform,
- take any action that imposes any unreasonable or disproportionately large
load on the Website or the Service,
- use a robot, spider or other device or process to monitor the activity on
or copy pages from the Website or the Service,
- collect electronic mail addresses or other information from our Website,
- impersonate another person or entity,
- engage in any activity that interferes with any persons ability to use or
access the Website and/or services, or
- assist, procure or aid any person to engage in any activity prohibited by
- frame or link or otherwise use or display the Website in such a manner so
that it appears to be part of its own or someone else's website, without
USER ACKNOWLEDGES AND AGREES THAT brainchildmerch MAY IN ITS SOLE AND UNFETTERED
DISABLE AND DENY ACCESS TO THE USER TO THE WEBSITE AND THE SERVICES, AND TAKE
LEGAL ACTION AGAINST ANY USER WHO ENGAGES IN ANY ACTIVITY OR CONDUCT THAT IS
4. brainchildmerch Obligations
4.1 Access to and use of the Website and Services
user complying with and discharging each of its obligations under these Terms of
Use, brainchildmerch shall allow user to access and use the Website and the services
brainchildmerch may collect personal data concerning
the user in the course of and incidental to users use of the Website and
services. brainchildmerch shall comply with, and user hereby consents irrevocably and
unconditionally to brainchildmerchs collection, use and disclosure of such data in
the link on the Website).
User acknowledges that brainchildmerch has no obligation to user to provide any
training or other support in relation to the use or operation of the Website
4.4 Modification of the Website.
brainchildmerch reserves the right to modify the organization, structure, content or
"look and feel" of the Website and/or the services, and may change,
suspend, or discontinue any aspect of the Website and/or the service at any time
without notice or any liability to user or any person. brainchildmerch shall have
complete discretion over the features, functions and other terms and conditions
on which the Website and the service is made available.
5. Intellectual Property Rights
5.1 Reservation of title
right, title or interest in or to any Intellectual Property Rights that vest or
subsist in or relate to the Website and/or the services provided other than
pursuant to the express authorisation set out in clause 4.1. brainchildmerch grants
user a limited revocable licence to access and use the Website and the service
This licence does not include the right to collect or use information contained
on the Website for purposes prohibited by brainchildmerch; to compete with Piki
Print; to create derivative works based on the layout or design, look-and-feel,
or structure of the Website; or download or copy the Website (other than page
caching). If user uses the Website in a manner that exceeds the scope of this
and deny access to and use of the Website.
5.2 Prohibition on infringement
User acknowledges and agrees that brainchildmerch does not permit, authorise or
condone and hereby expressly prohibits user from accessing or using the Website
and/or the services in a manner that infringes, or is likely to infringe, the
Intellectual Property Rights, or any other rights or privileges, of any person
anywhere in the world.
5.3 Derivative material
Subject to clause 5.2, user shall own any Intellectual Property Rights in any
original material that it authors, designs or creates using the functionality
provided by the Website. If the user chooses to add any item to a public
gallery, In consideration of the authorisation granted under clause 4.1, User
hereby grants to brainchildmerch an irrevocable, perpetual, non-exclusive, world-wide
licence to do all acts and things (including to authorise other persons to do
all acts and things) comprised within the said Intellectual Property Rights.
User Account, Password, and Security You will receive a password and account
designation upon completing the Site's registration process. You are responsible
for maintaining the confidentiality of the password and account, and are fully
responsible for all activities that occur under your password or account. You
agree to (a) immediately notify brainchildmerch of any unauthorized use of your
password or account or any other breach of security, and (b) ensure that you
exit from your account at the end of each session. brainchildmerch cannot and will
not be liable for any loss or damage arising from your failure to comply with
this Section 6.
7.1 Users warranties
User represents and warrants to brainchildmerch that, in its use of the Website and
the Services provided, it:
7.2 brainchildmerchs warranties
- will not infringe the Intellectual Property Rights, trade secrets, rights
of privacy, rights of publicity or other legal right of any person, and
- will comply with all applicable laws, rules, and regulations.
- User further represents and warrants to brainchildmerch that:
- there are no claims, demands or any form of litigation pending, or to the
best of its knowledge, threatened with respect to any content used or
proposed to be used by user;
- brainchildmerch will not be required to make any payments or compensation to
any person in connection with its use of such content; and
- such content does not contain viruses or any other programs or technology
which disrupts or damages the Website and/or the Services provided.
brainchildmerch represents and warrants that it has the right to grant access to and
license the use of the Website and services to user subject to and in accordance
7.4 Exclusion of implied warranties
- brainchildmerch provides the Website and Services on an "as is" and
be construed as a representation or warranty by brainchildmerch that the
functionality or operation of the Website and/or the services will:
- be uninterrupted or free of errors and inaccuracies;
- meet users requirements; or
- operate in the configuration or with the hardware or software used by
- User acknowledges and agrees that the Website and the service (as with
technology generally), may have errors (or bugs) and may encounter
unexpected problems. Accordingly, user may experience downtime and errors in
the use or operation of the Website and/or services provided.
- brainchildmerch does not and cannot control the flow of data and information
through the internet, and such flow depends on the performance of persons
and entities whose actions or inactions may produce situations in which
connections to the internet (or portions thereof) are impaired or disrupted
and for which brainchildmerch is not liable.
- brainchildmerch does not warrant that any data, information or other content
provided on the Website, whether concerning any goods or services or any
other subject, is complete or accurate.
SUBJECT ONLY TO CLAUSE 8.1, ALL CONDITIONS, WARRANTIES, REPRESENTATIONS,
INDEMNITIES AND GUARANTEES WITH RESPECT TO THE WEBSITE AND/OR ANY OTHER GOODS OR
SERVICES THAT MAY BE PROVIDED BY brainchildmerch, THAT WOULD OTHERWISE BE IMPLIED BY
STATUTE, LAW, EQUITY, TRADE CUSTOM, PRIOR DEALINGS BETWEEN THE PARTIES OR
OTHERWISE (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY,
FITNESS FOR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT) ARE HEREBY EXPRESSLY
7.5 No representation or reliance
(a) User acknowledges that neither brainchildmerch nor any person acting on Piki
Prints behalf has made any representation or other inducement to user to enter
(b) User acknowledges and confirms that it does not enter into these Terms of
Use in reliance on any representation or other inducement by or on behalf of
brainchildmerch, except for representations or inducements expressly set out in these
8. Exclusion and Limitation of Liability
8.1 Subject to law
pursuant to applicable law to do so is unlawful or void; or
applicable law to do so is unlawful or void; or
(c) liability for fraud or deceit; or
(d) liability for death or personal injury caused by the negligence of either
8.2 Exclusion of liability
Subject only to Clause 8.1, in no event shall brainchildmerch be liable to user or to
use of (or failure or performance of) the Website and/or the services provided
(a) malfunctions, failures, defects, acts or omissions or any other default or
liability caused directly or indirectly by:
- any third party;
- actions of user that were not expressly authorised by brainchildmerch;
- accident, misuse or abuse by anyone other than brainchildmerch;
- alteration or modification of the Website and/or the service, or any
component or part of the Website and/or the service provided, by anyone
other than brainchildmerch;
- products (including any hardware or software) or services not licensed or
supplied by brainchildmerch;
- power surge or failure,
- events of force majeure or events outside brainchildmerchs actual control; or
- any other condition not arising under normal operating conditions;
(b) any loss, cost, damage or expense of any nature arising or caused directly
or indirectly by any breach of users obligations or responsibilities set out in
(c) any loss of profit, business interruption, loss of or damage to goodwill,
and/or any expectation benefit;
(d) Subscribers liability to any person; or
(e) incidental, indirect, consequential, special, exemplary or punitive damages
of any nature, whether such liability is asserted on the basis of common or
civil law or in equity, including pursuant to any statute, contract, tort
(including negligence or strict liability) or otherwise and notwithstanding that
brainchildmerch has been advised of the possibility of any particular loss or damage.
brainchildmerch may, in its sole and unfettered discretion, and without users
consent, place links on the Website to other websites that are owned or operated
by other persons. User acknowledges and agrees that brainchildmerch is not
responsible for the operation of or content located on any such website, and
brainchildmerch cannot and does not warrant that the content of such websites is
accurate, complete, legal and/or inoffensive. By choosing to link to these other
websites, user acknowledges and agrees that it may not make any claim against
brainchildmerch for any damages or losses of any kind arising from the other website
and/or the link.
8.4 Limitation of liability
Subject to Clause 8.1, and except to the extent specifically excluded under
whether express or implied, shall be limited to the substitution or replacement
of any product or service that has been ordered and paid for by Subscriber using
User shall indemnify and hereby releases
unconditionally brainchildmerch , without set off or adjustment, against and from any
liability, loss, cost, expense or damage, including all legal fees, arising from
or relating to: (a) its use of the Website and/or services and/or the media or
content posted or uploaded by it, including any alleged or actual violation of
any law directly or indirectly arising from such use; (b) any breach or alleged
said media or content; and (d) any infringement or alleged infringement by user
of any persons Intellectual Property Rights, rights of privacy or publication,
or otherwise anywhere in the world.
(a) At any time and with or without cause, brainchildmerch may immediately terminate
hereunder, including suspending users access to and/or use of the Website and/or
the Services provided by brainchildmerch. In no event shall any such termination or
suspension by brainchildmerch relieve user of any obligation that has accrued under
website and using the services
9.2 Effect of termination
any websites, web pages, files, graphics, media or other content or material
relating to users use of the Website and/or the Services provided and brainchildmerch
shall have no liability to user or any person for doing so.
affect any cause of action, right, remedy or defence which shall have accrued or
shall thereafter accrue to either party.
unenforceable by any court or tribunal having jurisdiction in respect of these
(a) it shall be read down or severed in that jurisdiction only to the extent
that it is void, invalid or unenforceable; and
(b) it does not effect the validity or enforceability of that term or clause in
another jurisdiction or the remaining terms or clauses in any jurisdiction.
discretion at any time, and user hereby agrees to abide by and be fully bound by
such amended terms. The amended terms shall be effective automatically and
immediately once they are posted on the Website, and user's continued access and
use of the Website and the Services on or after such effective time constitutes
the user's unequivocal and unconditional acceptance of the amended terms. These
and remedy is to cease using the Website and the brainchildmerch services.
A waiver, consent, election or acquiescence given by a party under these Terms
of Use is only effective and binding on that party if it is given or confirmed
in writing by that party.
(a) brainchildmerch may at any time transfer, assign, novate or otherwise dispose of
no less than five (5) days notice in writing.
10.5 Governing Law and Jurisdiction
law in force for the time being in Delaware, United States of America (without
regard to its conflict of law rules).
(b) Each party irrevocably submits to the exclusive jurisdiction of the courts
of Delaware, and the courts competent to determine appeals from those courts,
with respect to any proceedings that may be brought at any time relating to