Terms of Service
Effective from: August 15, 2019
1. Acceptance of terms.
Please read these Terms of Service (“Terms” or “Terms of Service”) carefully before using the opendesign.dev website (the “Site”) and all services of Open Design provided therein and operated by Avocode, Inc., a Delaware Corporation (“Avocode”, “us”, “we”, or “our”). As used in these Terms, the “Service” means the services provided by Open Design on the Site for, among others, the uploading and sharing of designs, colors, fonts, code templates, and images and facilitating the translation of such designs, colors, fonts, code templates, and images into code.
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. We will provide at least 14 days’ notice prior to any new terms taking effect. You understand that it is your obligation to make sure that the e-mail you provided is operational and that e-mails from us will not be redirected to your spam folder.
By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
4. Minimum age.
5. Property Rights; User Content.
All rights, title and interest in and to the Site and Service and its components will remain with and belong exclusively to Avocode, Inc. and are protected by U.S. and international intellectual property laws. You shall not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise make the Service available to any third party. You shall comply with any codes of conduct, policies or other notices we provide you or publish in connection with the Service, and you shall promptly notify us if you learn of a security breach related to the Service.
Upon registration of your Account, we grant you a limited, non-exclusive, non-transferable, license to access and use the Site and Service. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You may not use the Open Design trademarks or service marks in connection with any product or service not provided by us, or in a manner that may cause confusion, dilution, or tarnish the image of the Open Design mark.
You retain all rights and are solely responsible for all content that you upload, post, deliver, publish, distribute, provide or otherwise link, transmit or store (hereafter “post” or “posting”) in connection with or relating to the Service (“User Content”). Notwithstanding the above, you grant us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, store, display, reproduce, modify, perform, and distribute User Content on the Site or other third party websites or applications for purposes directly related to operating the Site or the Service including: providing, improving, developing, or facilitating the Service and use of the Service by you and other users. We reserve the right to access your Account in order to respond to your requests for technical support.
You agree that you will not post:
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or any agreement with any party, including any licensing agreement entered into with a third party;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
- User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Open Design;
- Private information of any third party, including, without limitation, surname (family name), addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- User Content that is completely unrelated to the topic of the Site and Service; or
- User Content or links to content that, in the sole judgment of Open Design, (a) violates the previous subsections herein, (b) is objectionable, (c) which restricts or inhibits any other person from using or enjoying the Service or the Site (d) which may expose Open Design or its affiliates or its users to any harm or liability of any type.
You understand that even though date transfers on the Site and Services are encrypted and we do our best to protect the security of your information and User Content, we cannot guarantee that certain operation of the Service, including transmission to and by Open Design’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service will always be properly encrypted. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of User Content. We will have no liability to you for any unauthorized access or use of any of User Content, or any corruption, deletion, destruction or loss of any of User Content.
We understand that you may utilize various non-standard fonts in your designs. In order to properly process a non-standard font format and facilitate its display to you and other users, we may ask you to upload the font file onto our Site. Upon uploading the font file, we also reserve the right to store the file on our server for the purpose of facilitating its future processing and display, for your convenience and that of other users. Other than processing and storage as described in this paragraph, we will in no way use, manipulate or otherwise process the font. Fonts will not be available for download to any third party or the public.
By uploading the font file, you warrant that the upload does not infringe on U.S. copyright laws nor on any proprietary right of you or any third party that is the owner of the font pursuant to any licensing or other agreement and that you have secured all the appropriate permissions and sublicensing rights. You agree that Open Design will not be liable for any third party claim over ownership rights to the font and indemnify us from any action or claim brought forth by such third party.
When you create an account with us (the “Account”), you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your account on our Service.
You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password. You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account.
If we determine, in our sole discretion, that you have breached or failed to comply with these Terms or otherwise violated the law or any applicable rule or regulation or that your actions are harmful to us, we reserve the right to terminate or restrict your Account or your use of the Service, without notice nor liability.
In the case of Account termination, your rights under these Terms will automatically terminate. In such an event, you must cease all use of the Site and Service. Our failure to insist upon or enforce your strict compliance with these Terms will not constitute a waiver of any of our rights.
8. Payment & fees.
Payments are collected on our behalf by Avocode, Inc. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide us information regarding your credit card or other payment instrument. You represent and warrant to us that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay us the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms. You hereby authorize Avocode, Inc. to bill your payment instrument in advance on a periodic basis in accordance with the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let us know within sixty (60) days after the date that we bill you. We reserve the right to change our prices. If we do, we will provide notice of the change on the Site or in email to you. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
9. Refund / Chargeback policies.
We will not, under any circumstances, issue cash refunds for early plan cancellation. If you have a question about charges made to your account, please contact us immediately. If the charges were made in error, we will credit your account or credit card account for the appropriate amount (“Refund”). We have a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid will be permanently banned from use of the Service. Any past due fees and costs may result in restriction in access to the Service.
10. No Warranties.
THE SERVICE, INCLUDING THE SITE AND APPLICATION, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, BEYOND THE REFUND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR BAILMENT OF YOUR DATA ON OUR SERVERS. YOU ALSO ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL AVOCODE, INC., OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree to indemnify and hold us, and our respective employees, directors, officers, and agents harmless from any liabilities, claims, expenses or demands, including reasonable attorneys’ fees, arising directly or indirectly out of (i) your misuse of the Service, (ii) your violation of the laws, rules, and regulations, (iii) your breach of these Terms of Service, (iv) your infringement of any intellectual property or other rights of any third party, including by breach of any license agreement with any third party resulting in the unauthorized uploading or storage of the third party’s font or other intellectual property on our server, and (v) any other matter for which you are reasonable for hereunder or under law. You agree that your use of the Service shall be in compliance with all applicable laws and regulations.
12. Links to other websites.
Our Service may contain links to third-party web sites or services that are not owned or controlled by Avocode, Inc.
We have no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that Avocode, Inc. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
We may terminate your account in the circumstances listed in the Section 7 of the Terms. Upon termination, your right to use the Service will immediately cease and you will lose all data related to your Account. If you wish to terminate your account, you can contact us to do it.
Sections 5, 10, 11, 12, 14, 15, and 21 of these Terms shall survive termination of your Account and Terms.
After your account is terminated, all User Content that you posted to our Service will be deleted within 14 days after your billing period ends. You agree not to hold Avocode liable for any loss or damage to any or all User Content that occurs during or as a result of the deletion of such User Data.
14. Limitation of liability.
In no event shall Avocode Inc. be liable for any indirect, special, incidental, consequential or punitive damages (including but not limited to loss of use, loss of profits, or loss of data) whether in an action in contract, tort (including but not limited to negligence), equity or otherwise, arising out of or in any way connected with the use of or inability to use the Services, the Site or the materials therein or resulting from unauthorized access to or alteration of data.
Users may not post content that infringes on a third party’s intellectual property rights and we may remove any such content, without prior notice to users. Please notify us if you are aware of any intellectual property right infringement by a user of our Service. In compliance with Section 512 of the Digital Millennium Copyright Act of 1998 (the “DMCA”), we designate the following individual to receive any notifications of an alleged infringement:
321 East 73rd Street, 3rd Floor, New York, NY 10021, USA.
321 East 73rd Street, 3rd Floor, New York, NY 10021, USA.
An effective notification should include:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
A notification that does not comply with all the above-mentioned requirements may not be valid. If you believe that a notice was wrongly filed against you, under the DMCA, you may file a counter-notice to our designated individual with the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification or an agent of such person.
We are responsible for the investigation, defense, settlement and discharge of any intellectual property infringement relating to the Service.
16. Notifications; E-mails.
By registering an Account and/or using the Service, you consent to receiving electronic communications from us relating to your Account, purchases and the Service. These communications may involve sending emails to your e-mail address provided during registration and will include notices about your Account (e.g., payment authorizations, change in password or payment method, confirmation e-mails and other transactional information) and are part of your relationship with Open Design. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy.
17. Entire Agreement.
19. No Waiver.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be unlawful, invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Open Design without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
21. Governing law.
These Terms shall be governed and construed in accordance with the laws of the state of California, United States, without regard to its conflict of law provisions. Any action brought in connection with these Terms of Service shall be brought exclusively in the state and federal courts located in the Southern District of San Francisco County, state of California.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by you, but may be freely transferred, assigned, or delegated by Open Design.
23. Customer Support
To find more information about the Service and its features, or if you need assistance with your Account, please use the in-app chat or send us an e-mail at [email protected]. In the event of any conflict between these Terms of Service and information provided by customer support or other portions of our Site or Services, these Terms will control.