This document describes the terms by which Patternfish Inc. offers access to its services. If you do not agree to be bound by the terms of this Agreement, please do not use the Site (www.patternfish.com) or our services.
We may amend this Agreement at any time by posting the amended terms on the Site. All amended terms shall automatically take effect thirty (30) days after they are initially posted on the Site. This Agreement may not otherwise be amended except by mutual agreement between Patternfish and its members. This agreement is effective upon acceptance of registration for new members and is otherwise effective as of May 18, 2008 for all members registered before April 18, 2008.
the "Agreement" is this document and other documents referred to in this document
the "Site" is www.patternfish.com
"You" means you, the Patternfish member or user of the Site.
"We" means Patternfish Inc.
"Member" means a registered user of the Site, either a Buyer or Seller
"Buyer" means you if you are are using the Site to buy a license to a pattern
"Seller" means you if you are using the Site to list patterns for sale
(Of course, you can be both a Buyer and a Seller!)
"Pattern" means a design used as a model for making clothing and other products using yarn or other fibres, fabric and accessories by knitting, crocheting or other means.
- 1. Membership Eligibility
Our services are available only to persons who can form legally binding contracts under applicable law. Our services are not available to minors (as defined by local and/or Canadian law), nor are our services available to suspended Patternfish members. If you are a minor, you may user the Site only under the supervision of, and with the permission of, a responsible adult (such as a parent or legal guardian.)
Your Patternfish account, user ID, and other associated information, may not be transferred, sold or assigned to another party, nor may they be used by another party.
If you register a business as a Patternfish member, you declare that you have the authority to bind that business to this Agreement.
- 2. Fees and Services
We charge fees and commissions for listing patterns for sale on our Site. When you list a pattern you may review and accept the fees that you will be charged. Information about commissions is available in the About Selling section. and is a part of this Agreement.
We may change our Fee Schedule from time to time. Our changes to the Fee Schedule are effective after we have provided our Members with at least fourteen (14) days' notice of the changes by posting the changes on the Site. At our sole discretion, we may change some or all of our services at any time. If we introduce a new service, the fees for that service are effective at the launch of the service.
Unless otherwise stated, all fees are in United States Dollars. If you use our Site and our services, you are responsible for paying all incurred fees and applicable taxes.
- 3. Payment of Net Royalties
If you are a Seller, you must maintain an account acceptable to us for payment to you of royalties (net of fees, commissions and taxes) resulting from sales of your Patterns.
At present, we exclusively use PayPal® (www.paypal.com). We are not affiliated with PayPal. Any charges associated with your use of PayPal have nothing to do with us.
Additional or alternative payment methods may become available from time to time. Also, we may choose to cease to use certain payment methods from time to time. We will, of course, provide notice to Members should we do this.
If you do not maintain an acceptable payment method such that we cannot pay you, we will send you a notice to that effect. We will hold your payment for a period of two years and one day following the date of that notice. If, during that time, you set up an acceptable payment method, we will pay what is owing, but failing that, after the holding period is over, you will be charged an administrative fee equal to the balance of the net royalty, and we will no longer have any obligation to pay you.
- 4. Taxes
4.1 If you are a Seller, all taxes applicable on the commissions or fees charged by us to you are in addition to those commissions and fees. If you are not a Canadian resident, and non-resident withholding taxes are applicable, then our payments to you will be net of such taxes. If such withholding taxes are applicable and we do not deduct them from the amounts paid to you, then you agree to indemnify us in relation to the payment of those taxes.
4.2 If you are a Buyer, all taxes applicable to the price paid for the pattern license(s) you purchase are in addition to the list price.
4.3 If you are an Ontario resident, the Ontario retail sales tax will be applied to your purchases.
If you are a resident of New Brunswick, Nova Scotia or Newfoundland and Labrador, the harmonized sales tax will be applied to your purchases.
All Canadian residents will be charged the federal goods and services tax (GST). (Canadian residents who pay the harmonized tax pay the GST as a portion of the HST.)
4.4 If you are not a resident of Canada, then you accept all responsibility for the payment of all local taxes applicable to your purchases, and agree to indemnify both Patternfish Inc and the Seller(s) regarding the payment of such taxes.
- 5. Currency
All quoted prices are in United States dollars unless stated otherwise.
- 6. Patternfish as Intermediary
We don't review any pattern made available on our Site. As a result, we cannot control the quality, safety, legality, fitness of purpose or ownership of the patterns listed, the truth or accuracy of the listings, the right of Sellers to sell or license patterns, or the ability of Buyers to pay for patterns.
We may take reasonable steps to verify the accuracy of the information you provide when you become a Member of our Site. However, we cannot confirm each Member's information.
- 7. Buying
- 8. Listing and Selling
8.1 A Seller must be legally able to sell the patterns he or she lists on our Site. Your listings must describe your item and all terms of sale. Your listings may only include text descriptions, graphics, pictures, and other content relevant to the sale of that pattern. All listed patterns must be listed in an appropriate category.
We reserve the right to modify, delete or recategorize your listings and to provide feedback from Buyers in relation to your pattern(s). If we delete your listing(s), we will generally attempt to give you notice prior to such actions; however, if we consider the pattern or any material contained in your listing to be inappropriate, we may delete your pattern without notice.
Any source materials provided by you to Patternfish for scanning, processing, and posting to the site, shall be deemed to belong to Patternfish.
We reserve the right to change, add, delete, and reorganize pattern categories, and to recategorize all patterns listed on our Site.
8.2 We may suspend or terminate your account with us if you are found or suspected to have engaged in fraudulent activity in connection with our Site.
- 9. Commentary
If we provide a system for providing commentary or feedback, we reserve the right to control such commentary. If you leave a comment on our Site, it must not contain obscene, offensive, hateful, libelous or otherwise inappropriate language. We reserve the right to block words or phrases, close comment threads, delete comments, bar Members from commenting, and suspend or terminate Member accounts for contravention of this article of the Agreement.
All statements posted on our Site are the sole responsibility of the person posting the statement, and not of Patternfish or any of its affiliates, directors or employees. We will accept no liability in this regard.
- 10. Your Information
10.1 This is any information you provide to us or other users of our Site. This includes commentary, listings, personal information, account information, and so on. You are solely responsible for your information.
10.2 Your information shall not be false, inaccurate, misleading or fraudulent. It must not infringe on anyone's copyright, patent, trademark, trade secret or other proprietary rights. It must not violate any law, nor may it be defamatory, libelous, obscene, threatening or harassing.
Your information must not contain any programming code of any kind, and must not be damaging to, interfere with, or surreptitiously monitor our Site, our support systems or the data contained therein.
10.3 Finally, your information may not cause liability for us or cause us to lose in any way the services of our ISPs or other internet providers.
- 11. Access and Interference
You agree that you will not use any robot, spider, scraper or any other automated means to access the Site for any purpose whatsoever without our express written permission. Further, you agree that you will not interfere or attempt to interfere with the proper operation of our Site or bypass any security or other measures we employ to prevent or restrict access to our Site.
You also agree that you will not copy, reproduce, modify, create derivative works from, distribute or publicly display any content (other than your information) without the express written permission of Patternfish and any appropriate third party.
- 12. Breach
Without limiting other remedies, we may limit your activity, remove your listings, warn other users of your actions, suspend or terminate your Membership, and refuse to provide our services to you if you breach this Agreement, do not provide verifiable information to us, or if we believe that your actions may cause financial loss or legal liability to you, our Members, or us.
- 13. Privacy
- 14. Grant of License
14.1 As a Seller, by listing a pattern on our Site, you grant to Patternfish Inc a non-exclusive, transferable, sublicenseable, worldwide license to use the patterns and grant licenses to Buyers for the use of the patterns provided that such Buyers pay the listed price for said license. The consideration provided by us to you (the Seller) for the aforementioned licenses is the access granted to you by us for listing your pattern.
14.2 As a Seller, you further grant to Patternfish a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable license to use the pattern and its associated information, including photographs, images, and image files, to list, show and advertise the pattern on our Site or in any other media for the purposes of promoting the pattern, our Site, or Patternfish Inc. The consideration provided by us to you for the aforementioned licenses is the access granted to you by us for listing your pattern.
14.3 As a Seller, you represent and warrant to us and any Buyer that you are the rightful owner of the copyright and all other intellectual rights to the pattern(s) that you list, that you have the right to grant the licenses referenced in this document, and that no consent is required from, or payment required to any third party in relation to the licenses referenced herein.
14.4 Patternfish, its subsidiaries, officers, directors, employees etc. provide no warranties with respect to any pattern. Access to patterns is provided "as is" without any representation, warranty or condition, except for the warranties of the Seller.
14.5 In no event shall Patternfish, its subsidiaries, officers, director, employees or suppliers be liable for lost profits or any damages arising out of or in connection with any pattern or this Agreement for any reason, including negligence. Our liability, and the liability of our subsidiaries, officers, directors, employees, and suppliers, is limited to the price the Buyer paid for the license to a pattern.
14.6 As a Seller, you indemnify and hold harmless, and shall defend Patternfish Inc and the Buyer from and against any and all damages, losses and expenses which Patternfish Inc. or the Buyer may incur as a result of, or in connection with, any claim asserted against Patternfish Inc. or the buyer to the extent such claim is based upon a contention that the use or licensing of a pattern in the form supplied by you infringes any patent, copyright, trade secret or trademark. On request, you will provide all reasonable assistance in defending or settling such claims. If an injunction is obtained against the ability of Patternfish Inc. to license or sell the pattern or the buyer to use the patterns in accordance with the licenses granted in this Agreement in whole or in part, as a result of a claim, you, as Seller, shall at the request of Patternfish Inc.: (a) procure for the Buyer the right to continue to use the patterns, and (b) replace or modify the pattern so that the Buyer's use is not subject to any such injunction.
- 15. No Warranty
We, our subsidiaries, officers, directors, employees and our suppliers provide our Site and services "as is" and without any warranty of any kind. We and our suppliers specifically disclaim any implied warranty, merchantability, fitness of purpose, non-infringement, and those arising by law or through a course of dealing or usage of trade, unless specifically required by law.
- 16. Limit of Liability
In no event shall we, our subsidiaries, officers, directors, employees and our suppliers be liable for lost profits or any damages of any kind arising out of or in connection to our Site, our services or this Agreement, however arising, including through negligence.
Our liability, and the liability of our subsidiaries, officers, directors, employees and our suppliers to you or to any third party in any circumstance is limited to: a) the greater of the amount of fees you paid to us in the twelve (12) months prior to the action giving rise to liability, and $10 (Canadian) if you are a Seller, or b) $10 (Canadian) if you are a Buyer.
- 17. Indemnity
You agree to indemnify and hold us and our subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
- 18. Legal Compliance
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of our service and your listing, purchase and sale of items.
- 19. No Agency
You and Patternfish Inc. are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement save and except for the purposes of paragraph 14.1.
- 20. Notices
Except as explicitly stated otherwise, any notices shall be given by registered mail to Patternfish Inc. c/o McMaster, McIntyre & Smyth, LLP 2777 Dundas Street West, Toronto, Ontario, Canada, M6P 1Y4 and any notices to you may be provided by Patternfish Inc. to you to the email address you provide to Patternfish Inc. during the registration process or such other email address that you may provide to us from time to time. Notice shall be deemed given 24 hours after email is sent.That notice is effective even if we are notified that such email address is invalid. It is your obligation to maintain a valid email address in our records.We may give you notice by mail, postage prepaid, to the address provided to Patternfish Inc. during the registration process, but we have no obligation to use mail. In the case of mail, notice shall be deemed given 3 days after the date of mailing.
- 21. Resolution of Disputes
In the event a dispute arises between you and Patternfish Inc., our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Patternfish Inc. agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.
21.1 Binding Arbitration: For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than C$10,000, you or Patternfish Inc. may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If the arbitration will reqiure an in-person appearance, then it will be conducted at a location within the City of Toronto, Ontario Canada.In either case, the arbitration shall be administered in accordance with the Arbitration Act, 1991 (Ontario) (http://www.e-laws.gov.on.ca), by an arbitrator determined in accordance with that Act. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. No appeal will be awardable from such arbitration.
21.2 Court: Only if the matter is not to be resolved by arbitration, then the Claim may be adjudicated by a court of competent jurisdiction located in the City of Toronto, Ontario, Canada. You and Patternfish Inc. agree to submit to the courts located within the City of Toronto, Ontario, Canada.
22. Laws of Ontario and Canada to Apply
This Agreement shall be governed in all respects by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
- 23. General
We do not guarantee continuous, uninterrupted or secure access to our services, and operation of our Site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
- 24. Assignment
You are not entitled to assign your rights to this Agreement or any prior agreement without our express written consent. You agree that this Agreement and any prior agreements and all incorporated terms and conditions and rights and obligations in relation thereto may be automatically assigned by Patternfish Inc. in accordance with Section 20 "Notices", in our sole discretion. In such case, all references to "we" and other first person pronouns and to Patternfish Inc. shall become a reference to the assignee of Patternfish Inc. and after such assignment, the assignor shall have no further obligations with respect to this Agreement or any prior agreements aside from matters that arose prior to such assignment.
- 25. Termination
25.1 Termination by you as a Seller: If you are a seller, you may terminate this agreement upon thirty (30) days' notice to us in accordance with Section 20 (the end of such thirty (30) day period being the "Effective Termination Date").We will de-list your patterns on the Effective Termination Date or before that date at our option.This Agreement shall continue with respect to any sales of your patterns that occur prior to the Effective Termination Date.This Agreement shall also continue notwithstanding such termination save and except for the license granted in paragraph 14.1 which shall terminate on the Effective Termination Date.
25.2 Termination by you as a Buyer:If you are a buyer, you may terminate this agreement upon thirty (30) days' notice to us in accordance with Section 20 (the end of such thirty (30) day period being the "Effective Termination Date").Such termination shall not affect this Agreement in relation to any purchases made by you prior to the Effective Termination Date and you will be responsible for all payments and charges in relation to the use of the Site and the purchase of any patterns incurred prior to the Effective Termination Date. We will terminate your account with the Site on the Effective Termination Date or before that date at our option.The license granted in paragraph 10.3 will continue notwithstanding such termination.
25.3 Termination by Patternfish Inc.: We may terminate this agreement upon thirty (30) days' notice to you in accordance with Section 20 (the end of such thirty (30) day period being the "Effective Termination Date").If you are a seller, then the provisions of paragraph 25.1 will apply to such termination at the end of the Effective Termination Date in this paragraph.If you are a buyer, then the provisions of paragraph 25.2 will apply to such termination at the end of the Effective Termination Date in this paragraph.Further, at our option, we reserve the right to suspend your use of the Site immediately upon notice to you in accordance with Section 20 or immediately without notice to you if we determine that you may be in breach of the terms of this Agreement.
- 26. Contract in English
As a Buyer, you are obliged to complete the transaction with Patternfish Inc. as agent for the Seller in accordance with this Agreement.
It is the express wish of the parties that this document and any related documents be drawn up and executed in English. Les parties aux présentes ont expressément demandé que ce document et tous les documents s'y rattachant soient rédigés et signés en anglais.