Terms of Service
Effective Date: August 31, 2006
Welcome to the Gigantikes™ web site, which is located at gigantikes.com (the "Web Site"). The following Terms of Service ("TOS") contain the terms and conditions that govern your use of the Web Site and Gigantikes.com Service (as defined below). These TOS describe your rights and responsibilities and what you can expect from the Gigantikes.com Service. Use of the Gigantikes.com Web Site constitutes acceptance of these TOS
Gigantikes.com reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the Gigantikes.com Web Site. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Web Site and the Gigantikes.com Service. Your continued use of the Gigantikes.com Web Site following posting of a change notice or new TOS on the Gigantikes.com Web Site will constitute binding acceptance of the changes.
1. The Gigantikes.com Service
1.1 Gigantikes.com provides an Internet-based design service and merchandise ordering service through the Web Site (all such services, collectively, the "Gigantikes.com Service"or “Service”). The Service enables users to order customized images with or without text ("Gigantikes Images”) to be printed on merchandise, photos, mousepads, t-shirts, notecards, postcards and greeting cards (collectively, "Products"). The Products will be produced by and shipped to the user via a Third Party Supplier. The Third Party Supplier may be different for each product and may change occasionally without notice to the user.
1.2 Acceptance of orders
We accept all orders using the Service subject to these Terms and conditions. All credit and charge card orders are subject to validation checks and authorization by the card issuer. If the issuer of your payment card refuses to authorize payment to us, we will not be liable for any delay in delivery or non-delivery. Payment will be debited from your account before your purchase is dispatched.
1.3 Delivery of orders
We will endeavor, but we are under no obligation, to deliver your order within the time stated for the Service. All time periods refer to working days and do not include weekends (weekends are Saturdays and Sundays). We accept no liability for loss or damage suffered due to delivery after this time or non-delivery, whether this loss is caused by us or by a third party.
We will deliver to the address you notify to us when you place your order.
You agree that we are not responsible for a delivery if you have incorrectly supplied the consignment address. We reserve the right to dispose of incorrectly addressed envelopes and their contents if they are returned to us, without the obligation to refund you or any other person.
1.4 Returns and refunds
When your order has been accepted, you will see a confirmation page. Because all Gigantikes images are custom ordered work, there are no refunds, exchanges or returns on merchandise unless the merchandise is defective or broken upon arrival. If you wish and are entitled to return or gain a refund on an order made through the Service, you can email us at
1.5 Price information
All prices displayed online are correct at the time when they are posted on the system, and prices displayed online will prevail at all times in relation to orders placed through the system.
2. Use of the Web Site and Gigantikes.com Service.
2.1 Eligibility. Gigantikes.com will only knowingly provide the Gigantikes.com Service to parties that 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 use the Gigantikes.com Service only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Gigantikes.com Service is not intended for children under the age of 13.
2.2 Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of these TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Gigantikes.com Service and the Web Site. See Section 12 - Dispute Resolution for further information.
2.3 Your License to Use the Web Site and the Gigantikes.com Service.
(a) Gigantikes® solely and exclusively owns all intellectual property and other rights, title and interest in and to the Gigantikes.com Service and Web Site, except as expressly provided for in these TOS. For example and without limitation, Gigantikes.com owns the trademarks GIGANTIKES™, GIGANTIKES.COM, GIGANTISIZE(SM); the copyrights in and to the Web Site, and certain technology used in providing the Gigantikes.com Service. You will not acquire any right, title or interest therein under these TOS or otherwise.
(b) Gigantikes.com grants you a limited revocable license to access and use the Web Site and the Gigantikes.com Service for its intended purposes, subject to your compliance with these TOS. This license does not include the right to collect or use information contained on the Web Site for purposes prohibited by Gigantikes.com; to compete with Gigantikes.com; create derivative works based on the content of the Web Site; or download or copy the Web Site (other than page caching). If you use the Web Site in a manner that exceeds the scope of this license or breach this TOS, Gigantikes.com may revoke the license granted to you.
(c) This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 4.3.
3. General Rules.
3.1 Prohibited Use. You may only use the Gigantikes.com Service as expressly permitted by Gigantikes.com. You may not cause harm to the Web Site or the Gigantikes.com Service. Specifically, but not by way of limitation, you may not: (i) interfere with the Gigantikes.com Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Gigantikes.com Service; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the Web Site, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the Gigantikes.com Service; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain Gigantikes.com's name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the Gigantikes.com Service; or (viii) assist or encourage any third party in engaging in any activity prohibited by these TOS.
3.2 Use of the Gigantikes.com Service
You will not use the Service for any of the following purposes:
(i) any purposes whatsoever which are unlawful, which might encourage conduct constituting a criminal offence, or which might constitute or give rise to the misleading or deception of any person;
(ii) any purposes which are abusive, threatening, harmful, vulgar or obscene or which may constitute or encourage harassment or be otherwise objectionable.
(iii) any spamming (unsolicited junk mail), chain letters or other use that may otherwise disrupt the Service or the networks through which you access and use the Service.
3.3 Copyright
(i) There are copyright laws to prevent people from reproducing images and photographs unless they own the copyright or are authorized by the copyright owner.
Gigantikes images are the sole property of Gigantikes.com and may not be downloaded, uploaded or otherwise transferred, or caused to be transferred from the Website or any other internet site or from one computer to another. Gigantikes images may not be reproduced, copied, printed, published from an electronic file or posted on the internet by any person or persons without the express permission of Gigantikes.com.
(ii) You agree to only upload via the Service images and photos in which the copyright is vested in you. You agree not to infringe the rights of any third party putting these images and photos on the Website. You understand that we are unable to provide you with permission to print photos or images belonging to others. You are solely responsible for any copyright violations that you may incur as a result of your activities on the system.
(iii) We shall decide, at our discretion, whether your use of the Service constitutes any breach of the above restrictions.
We reserve the right not to fulfill the Service if to do so may be illegal, may breach these terms of use, may violate the rights of any third party or otherwise may be reasonably objectionable to us. You confirm that we shall not be liable to you or to any third party as the result of any such non-fulfillment.
3.4 Privacy Policy. By entering into these TOS, you agree to Gigantikes.com's collection, use and disclosure of your personal information in accordance with the Privacy Policy.
3.5 Ordering Policies. If you purchase Products, you agree to do so in accordance with Gigantikes.com's Ordering Policy.
4. Order and Buy General Rules and License.
4.1 Description. As part of the Gigantikes.com Service, Gigantikes.com offers a service (the "Order & Buy Service") that allows you to upload multiple photos ("Content") to the Web Site, order Gigantikes Images featuring the uploaded Content, and purchase Products featuring the Gigantikes Images for your own use.
4.2 Delivery of Content. You will upload to Gigantikes.com all Content that you want to use with the Order & Buy Service in accordance with the applicable instructions on the Web Site and the Content Usage Policy. Gigantikes.com may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the Order & Buy Service.
4.3 Licensing Your Content to Gigantikes.com. You will retain ownership of the Content that you upload to the Web Site. You hereby grant to Gigantikes.com a royalty-free, worldwide, transferable, nonexclusive, right and license to use such Content, in all media existing now or created in the future, as Gigantikes.com deems necessary to enable you to use the Create & Buy Service to create, produce and purchase Products for so long as your Content remains uploaded to the Web Site. Gigantikes.com may sublicense the rights that you grant it in this Section to a third party subcontractor only for purposes of producing your Products and providing the Gigantikes.com Service.
5. Reservation of Rights.
5.1 Monitoring. If Gigantikes.com determines, in its sole and absolute discretion, that you or another Gigantikes.com user will breach a term or condition of these TOS, Gigantikes.com may take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
5.2 Modification of the Service. Gigantikes.com may modify the Gigantikes.com Service at any time with or without notice to you, and will incur no liability for doing so.
6. Submissions.
When you submit questions, comments, suggestions, ideas, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant Gigantikes.com permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that Gigantikes.com will have no obligation to keep any Submissions confidential. You will not bring a claim against Gigantikes.com based on "moral rights" or the likes arising from Gigantikes.com's use of a Submission. This Section does not apply to your Content that you use in connection with the Order & Buy Service.
7. Representations and Warranties.
7.1 Mutual Representations and Warranties. You represent and warrant to Gigantikes.com and Gigantikes.com represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under these TOS, (ii) the execution and performance of your or its obligations under these TOS do not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) these TOS are a legal, valid and binding obligation of the party entering into these TOS, enforceable in accordance with their terms and conditions.
7.2 By You. You represent and warrant to Gigantikes.com that, in your use of the Gigantikes.com Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to Gigantikes.com that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) Gigantikes.com will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that Gigantikes.com incurs in providing the Gigantikes.com Service; (iii) the use of any instructions, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
8. Disclaimers and Exclusions.
8.1 DISCLAIMER OF WARRANTIES. GIGANTIKES.COM PROVIDES THE WEB SITE AND GIGANTIKES.COM SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. GIGANTIKES.COM DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, GIGANTIKES.COM SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. GIGANTIKES.COM MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
8.2 EXCLUSION OF DAMAGES. GIGANTIKES.COM WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL OR ATTORNEY FEES) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE GIGANTIKES.COM SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Credit card payment
We will take all reasonable care to keep the details of your order and credit/debit card information secure. We will not be liable for any losses you may suffer as a result of unauthorized access by a third party to the information you transmit when you order from the Service. It is your responsibility to ensure the security of your own system password and credit/debit card details to avoid its unauthorized use.
9. Indemnification.
You must indemnify and hold Gigantikes.com and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any of these TOS through any act or omission. If you have to indemnify Gigantikes.com under this Section, Gigantikes.com will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Gigantikes.com's express written permission.
10. Termination.
10.1 Termination. Gigantikes.com may suspend or terminate your use of the Web Site or Gigantikes.com Service if it believes, in its sole and absolute discretion, that you have breached a term of these TOS.
10.2 Survival. Notwithstanding Section 10.1 above, these TOS will survive indefinitely unless and until Gigantikes.com chooses to terminate them.
10.3 Effect of Termination. If you or Gigantikes.com terminates your use of the Web Site or the Gigantikes.com Service, Gigantikes.com may delete any Content or other materials relating to your use of the Gigantikes.com Service on Gigantikes.com's servers or otherwise in its possession and Gigantikes.com will have no liability to you or any third party for doing so.
11. Notice.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Gigantikes.com, you must use the following addresses: 144 North Beverwyck Road #329, Lake Hiawatha, N.J. 07034, . If Gigantikes.com provides notice to you, Gigantikes.com will use the contact information provided by you to Gigantikes.com. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
12. Dispute Resolution.
All disputes arising out of, relating to or connected with these TOS or your use of any part of the Gigantikes.com Service will be exclusively resolved under confidential binding arbitration held in Morris County, New Jersey before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying New Jersey law (without regard for conflicts of law principles). The arbitrator's award will 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 under these TOS will be joined to an arbitration involving any other party subject to these TOS, whether through class arbitration proceedings or otherwise. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Morris County, New Jersey. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and New Jersey State courts in Morris County. By entering into these TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with these TOS or your use of any part of the Gigantikes.com Service must be asserted individually. Notwithstanding anything to the contrary in this Section 12, Gigantikes.com may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
13. Miscellaneous.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of New Jersey without reference to conflict of law principles. These TOS will not be assignable or transferable by you without the prior written consent of Gigantikes.com. These TOS (including all of the policies and other Agreements described in this TOS, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under these TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.The invalidity or unenforceability of any provision of these TOS will not affect the validity or enforceability of any other provision of these TOS, all of which will remain in full force and effect.