For good and valuable consideration, receipt of which is hereby acknowledged, Nineteenth Amendment and Designer, intending to be legally bound hereby, agree to the following:
- “Design Submission” means any and all of the following provided by Designer to Nineteenth Amendment: sample patterns; prototypes; mock-ups; pictures; samples; technical drawings; artistic drawings; photographs; sources of fabrication; technical specifications; and written descriptions of design themes or of any of the other preceding items or information. Nineteenth Amendment is not liable for any digital assets or physical products submitted to Nineteenth Amendment. As between Nineteenth Amendment and Designer, all rights, title, and ownership of each Design Submission is and remains with Designer. Nineteenth Amendment may, at its sole discretion, reject any Design Submission if (a) Designer does not provide all types of Design Submissions or (b) one or more of the Design Submissions provided by Designer is not, as determined by Nineteenth Amendment, in accordance with Nineteenth Amendment’s guidelines.
- Nineteenth Amendment’s services are available only to, and may only be used by, individuals who are 18 years and older and who can form binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. Nineteenth Amendment may, in its sole discretion, (a) refuse to offer access to or use of the Platform to any person or entity at any time and (b) change the Platform eligibility criteria at any time. The preceding sentence is void where prohibited by law, and Developer’s right to access the Platform is revoked in such jurisdictions. Designers between the ages of 13 and 18 must use Nineteenth Amendment's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In such cases, the adult is the user and is responsible for all of Designer’s activities related to this Agreement. People under the age of 13 are not permitted to use Nineteenth Amendment’s services.
- You will need to set up an account to use the posting features of the Platform. You may not use a third party’s account without permission. When you are setting up your account, you must give us accurate and complete information. This means that you cannot set up an account using a name or contact information that is not yours, and you must provide accurate and current information on all registration forms that are part of the Platform.
- Accounts are not transferable, so you may not transfer your account to someone else. You are solely responsible for, and have complete responsibility for, your account and everything that happens on your account. If you share your account with other people, then the person whose billing information is on the account is ultimately responsible for all activity. If you find out that someone is using your account without your permission, you will promptly let us know. We are not liable for any damages or losses caused by someone using your account with or without your permission. However, if we or anyone else suffer any damage due to the unauthorized use of your account, you may be liable. We may terminate your account at any time for any or no reason.
- The following terms are related to your responsibilities concerning manufacturers:
- Designer is solely responsible for the manufacturing of all products offered for sale through Designer’s account on Nineteenth Amendment’s Platform. Designer is solely responsible for providing proper care, content, and labeling tags for all of Designer’s garments sold on the Platform, and Designer is responsible for providing these tags to its manufacturer.
- Designer must work with a U.S.-based manufacturing partner for all orders.
- If Designer uses manufacturers provided through the Platform to manufacture its products, Designer must use the Platform for all manufacturing communication and transactions with respect to such products.
- If Designer is not using a manufacturer provided through the Platform, the U.S.-based manufacturers must be approved and vetted by Nineteenth Amendment in advance. We ask you to share information on your use of outside manufacturing because transparency is important to us and our community. Failure to comply may result in the suspension of Designer’s account.
- Regardless of whether Designer uses a Platform-provided manufacturer or another manufacturer, the relationship between Designer and the manufacturer is independent of Nineteenth Amendment, and Nineteenth Amendment isn’t part of that agreement or transaction. Designer is solely responsible for paying the manufacturers for all work commissioned to such manufacturer, and Designer will pay the manufacturers promptly upon receipt of the manufacturer’s invoice. Nineteenth Amendment will not be responsible for any losses you may suffer in connection with the manufacture of your products.
- Nineteenth Amendment may charge (a) fees for Designer’s use of Nineteenth Amendment’s virtual showrooms and (b) transaction fees for user purchases or wholesale orders on the Platform. When you list an item on the Platform, you will have an opportunity to review and accept the fees that you will be charged as a commission for selling that item. Nineteenth Amendment’s Fees and Billing Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees and Billing Policy and to any fees for Nineteenth Amendment's services are effective immediately after Nineteenth Amendment posts the changes on the Platform. Designer will be deemed to have accepted such changes by continuing to use the Platform. Nineteenth Amendment may also choose to make temporary changes to the Fees and Billing Policy and to the fees for Nineteenth Amendment’s services for promotional events, and such changes are effective when Nineteenth Amendment posts the promotional event on the Platform. Nineteenth Amendment may, at its sole discretion, change some or all of its services at any time. If Nineteenth Amendment introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD).
- You are responsible for paying all fees and applicable taxes associated with your proceeds from using the Platform. We provide plans for automatic bill payment as outlined in the Fees and Billing Policy. Nineteenth Amendment will automatically withdraw the amount due for the current month’s fees and charges. You must pay the amount due in full within 15 days after the invoice, or your account will be past due and subject to cancellation. If you request to put your account on hold, it is treated as a cancellation. To reactivate a cancelled account, you must pay a $50 reactivation fee to Nineteenth Amendment. Collections launched on Nineteenth Amendment and/or Designer studios will be taken down at the sole discretion of Nineteenth Amendment if past due.
- Designer is responsible for shipping products sold through their account within the 7 days past their estimated time to produce as indicated by designer on the platform. At the time of shipment, Designer or its representative must input the shipping provider and the tracking number for each shipment. If Designer does not produce and fulfill sales within 4 weeks after receiving payment, Designer’s access to the Platform may be revoked.
- Designer is responsible for all of its products returned within 2 week after shipping said products to the customer. Designer must process returns through the Platform and must reimburse the customer within 48 hours after physically receiving the returned product. Designer may choose not to accept a return if the product is damaged or shows signs of being worn, in which case the product must be shipped back to the customer. Designer must reimburse the customer for all products returned to and accepted as a returned item by the Designer.
- We reserve the right, in our sole discretion, to seek reimbursement from Designer in any of the following circumstances: (a) we provide a refund to a customer because Designer did not promptly deliver the product(s), (b) we discover erroneous or duplicate transactions related to Designer’s account, (c) we receive a chargeback from Designer's credit card issuer or a reversal of payment for the amount of a customer’s purchase from a Designer, or (d) Designer does not act in accordance with this Agreement or any of Nineteenth Amendment’s policies.
- Designer represents and warrants that (a) Designer is the sole and original designer and creator of each Design Submission, (b) Designer has not and shall not incorporate into any Design Submission any material from any other person for which the Designer does not have the necessary rights to do so, (c) each Design Submission will not actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract, or tort right of any person, and (d) Designer is legally able and entitled under the laws of Designer’s jurisdiction to enter into this Agreement and to grant Nineteenth Amendment the rights described in this Agreement.
- With respect to Nineteenth Amendment, you are an independent contractor, and you will not be entitled to any Nineteenth Amendment employee benefits of any nature. You will also be solely responsible for all unemployment or disability insurance payments and all social security, income tax, or other withholdings, deductions, or payments that are required by federal, state, or local law with respect to any sums paid to you hereunder.
- You irrevocably grant to Nineteenth Amendment the right and license to use your name, trademarks, likeness, and biographical data solely for advertising and promotion related to the sale of items and in any derivative work thereof. This right and license is non-exclusive, worldwide, and royalty-free and includes the right to sublicense. Nineteenth Amendment will use commercially reasonable efforts to comply with all reasonable trademark usage and branding guidelines provided by the Designer.
- Except as otherwise indicated, the Platform and its contents (including, but not limited to, the text, photographs, information, software, graphics, images, sound, and animation) are owned by Nineteenth Amendment and are protected by domestic and international copyright, trademark, and other intellectual property laws. All copyrightable text and graphics, the selection, arrangement, and presentation of all materials (including information in the public domain), and the overall design of this Platform are copyrighted 2016-2017 by Nineteenth Amendment, all rights reserved. The name “Nineteenth Amendment”® and the other marks, phrases, logos, and designs of Nineteenth Amendment that we use in connection with our services are trademarks of Nineteenth Amendment. During the term of this Agreement, Nineteenth Amendment hereby grants to Designer a nonexclusive, royalty-free, limited license to use and display Nineteenth Amendment trademarks solely for the purpose of advertising and promoting Nineteenth Amendment’s sale of items on the Platform in compliance with the terms and conditions of this Agreement. We also hereby give you permission to print materials from the Platform for the sole purposes of viewing, reading, and retaining for reference the materials for non-commercial use. Designer acknowledges Nineteenth Amendment’s exclusive ownership of Nineteenth Amendment’s intellectual property and that use of any of the Nineteenth Amendment’s intellectual property by Designer, including any resulting goodwill, shall inure to the sole benefit of Nineteenth Amendment. Designer shall not do or suffer to be done any act or thing inconsistent with such ownership and shall not acquire or claim or assist third parties in acquiring or claiming any title in or to any of Nineteenth Amendment’s intellectual property, including by virtue of this Agreement or through Designer’s use of the Nineteenth Amendment trademarks. Any other copying, distribution, retransmission, or modification of information or materials on the Platform, whether in electronic or other form, without our express prior written permission is strictly prohibited. You will not disassemble, decompile, reverse engineer, or otherwise modify the material on the Platform. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable laws. In addition, Designer hereby covenants that it shall not directly or indirectly undertake any action that in any manner might question, contest, challenge, infringe or impair the validity, enforceability, scope of rights or title of Nineteenth Amendment in any of Nineteenth Amendment’s intellectual property at any time during the term of this Agreement and thereafter. This paragraph will survive termination of this Agreement.
- Nineteenth Amendment may assign this Agreement or any of its rights and obligations hereunder to any third party, but Designer may only assign this Agreement or any of its rights or obligations hereunder upon Nineteenth Amendment’s prior written consent. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the parties and their successors and assigns.
- Designer will indemnify, save, and hold harmless Nineteenth Amendment from and against any loss, liability, damage, and cost that Nineteenth Amendment may incur, now and forever, arising out of or related to (a) Designer’s breach of this Agreement or (b) any services or information provided by Nineteenth Amendment that came from Designer. This paragraph will survive any termination of this Agreement.
- To the fullest extent permitted by law, neither Nineteenth Amendment nor our officers, directors, shareholders, employees, contractors, or volunteers shall be liable to you for any lost profits or revenues, or for any consequential, incidental, indirect, special, or punitive damages, arising out of or in connection with Nineteenth Amendment’s services or this Agreement. In no event shall Nineteenth Amendment’s aggregate liability for any damages exceed the greater of one hundred US Dollars (US$100) or the amount you paid Nineteenth Amendment in the then-preceding twelve months. Some jurisdictions do not allow limitations on incidental or consequential damages, so the above limitations may not apply to you. This paragraph will survive termination of this Agreement.
- You irrevocably release Nineteenth Amendment from any claims, demands, and damages arising out of disputes with other users or parties except to the extent caused by such user’s or party’s gross negligence or willfulness. This paragraph will survive termination of this Agreement.
- This Agreement and all aspects of the relationship between the parties shall be construed and enforced in accordance with and governed by the internal laws of the State of New York and the United States of America, without regard to its conflicts of law provisions. Except as provided in the next paragraph, the parties irrevocably submit to the exclusive jurisdiction and venue of the federal and state courts locate in or with jurisdiction over New York County, New York, for the resolution of any disputes related to this Agreement. The parties hereby waive any defenses to such jurisdiction and venue, including inconvenient forum. This paragraph will survive termination of this Agreement.
- Any dispute or claim arising from or relating to this Agreement shall be finally settled by arbitration, using the English language, administered by the American Arbitration Association (the “AAA”) in New York County, New York, under the AAA’s Commercial Arbitration Rules then in effect (those rules are deemed to be incorporated by reference into this paragraph). The arbitration will be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration will take place on an individual basis: class arbitrations and class actions are not permitted and are hereby waived by you. You and Nineteenth Amendment are each waiving the right to trial by jury or to participate in a class action. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief pending a final decision by the arbitrator.
- This Agreement will remain in force until terminated by either party by written notice to the other party. After termination, Nineteenth Amendment will continue to have the right to sell off or otherwise dispose of any items in inventory at the time of termination, and Designer will continue to have the right to receive payment for any such items sold. This Agreement will continue after termination with respect to such post-termination actions.
- During the term of this Agreement and for 5 years thereafter (the “Restricted Period”), Designer will not, directly or by assisting others (other than in connection with carrying out the purposes of this Agreement), solicit, attempt to solicit, or engage in any business from any of Nineteenth Amendment’s vendors, retailers, or other such third parties for the purpose of receiving products or services that Designer could otherwise have obtained through the Platform.
- Internal Revenue Service regulations require that we file a Form 1099-K to report unadjusted annual gross sales information for designers located in the United States that meet both of the following thresholds in a calendar year: (a) more than USD$20,000 in gross sales by the designer, and (b) more than 200 transactions by the designer. To assist with our compliance with these regulations, Designer will provide taxpayer identification information to Nineteenth Amendment once Designer approaches 150 transactions in a calendar year, regardless of sales volume, aggregated across all of Designer’s shops on the Platform.
- The above preamble and recitals are incorporated herein by reference and form a substantive part of this Agreement.