Terms of Use and Service

Last Updated: August 5, 2020

These Terms of Use and Service Agreement (“Terms”) governs your use of the marketplace platform offered by Instant Autographs Inc. (“we”, “us”, “our”, or “IA”), including through our website (instantautographs.com), mobile application (“App”), and services we provide through them (collectively, the website, App, and services referred to as our “Platform”).

These Terms apply to users of, including visitors to, our Platform (in each case, “you” and applicable variations thereof).

Your use of our Platform as Talent (defined below) is governed by separate terms of use, which we have agreed with you or else can be found on our Platform.

PLEASE READ THESE TERMS CAREFULLY. By accessing and/or using our Platform, or otherwise indicating your acceptance (for example, by clicking “I Agree” or “Accept” when creating or logging into your account, etc.), you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, do not access or use our Platform.

  1. Our Platform

You agree to provide true, accurate, current, and complete information when using our Platform. You agree not to create an account using a false identity or providing false information or if you have previously been removed or banned from our Platform. You are responsible for maintaining the confidentiality of your account information, including your username and password. You are responsible for all activities that occur on or in connection with your account and you agree to notify us immediately of any unauthorized access or use of your account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your account.

  1. Terms of Product Purchases
    • Through our Platform, you may purchase various products from musicians, athletes, actors, performers, artists, influencers, and other celebrities (each, “Talent”), including digital photographs, print photographs, plaque photographs, or other memorabilia, that bear a reproduction of the approved digital signature of the Talent, and that may bear your name (or a friend or family member’s name), and one of our preset greetings as chosen by you (collectively, the “Products”).
    • The signature of the Talent that appears on a Product is a reproduction of a digital signature. The digital signature is provided to us by the Talent and certified by the Talent to be a true copy of his or her digital signature.  The digital signature is affixed to the Product automatically and without any action on the part of the Talent upon completion of your order.
    • We reserve the right to refuse any order you place with us for any reason. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may (but for greater certainty are not required to) attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
    • You agree to provide current, complete and accurate purchase and account information for all purchases made on our Platform. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
    • Returns or exchanges of Products are not permitted, and you may not cancel an order.
    • Products may have limited quantities and may be unavailable to you.
    • Prices for our products are subject to change without notice.
    • We reserve the right at any time to modify or discontinue any Product or service on our Platform (or any part or content thereof) without notice at any time. Each Talent is entitled to remove or alter any Product at any time for any reason without notice.
    • We shall not be liable to you or to any third party for any refusal of any return or exchange, any unavailability of any Product, any price change, or any modification or discontinuance of any Product or service on our Platform. Nor shall any Talent have any liability for the removal or alteration of any Product.
    • All images and intellectual property and other rights contained within a Product (other than the personalized message) are licensed, not sold. You are buying the limited right (or license) to use such images, intellectual property and other rights contained within the Product (“Product IP”) solely in accordance with these Terms. All rights not explicitly granted to you within these Terms are hereby reserved.
    • Upon receipt by us of your payment in full and subject to these Terms, the Talent (and any of our other applicable licensors) hereby grants to you a limited right to use the applicable Product IP solely as embodied in the Product you have purchased (in whole but not in part, and you may not edit nor modify the Product in any way), solely for your own personal, non-commercial, and non-promotional purposes, on a non-exclusive, royalty-free, fully paid, worldwide, non-sublicensable and revocable basis.
    • You may not sell, re-sell, sub-license or encumber your rights to any Product IP (including, without limitation, for example, by posting any Product you purchase for sale on eBay). If you have purchased a Product for a friend, family member or other individual, you may transfer your rights to use Product IP solely as embodied in such Product as outlined in these Terms to such individual ((a “Recipient”); however, you will remain jointly and severally liable with the Recipient for any breach of these Terms.
    • You may use Product IP only in accordance with these Terms. We may terminate all or part of the foregoing licenses at any time for any reason (including without limitation in the event of your, or a Recipient’s, breach of these Terms). We reserve the right to request that you return or destroy a Product in the event that we determine you have used the Product IP in any way that does not comply with these Terms and you agree to immediately comply with such request at your expense. If you breach any provisions of these Terms, we may terminate your access to our Platform, or we may remove or ban you (or any account you created or control), and your license to use Product IP terminates and you must, upon request by us, immediately destroy or return to us all copies of any Product IP in your possession or control, including without limitation removing any posting of the Product IP from any social media platform, and notify any Recipient of the termination and instruct them to do the same, and take any other action we reasonably request, including identifying each Recipient, without limiting the further remedies available to us in law or in equity. Without limiting any of our rights, any personal or customized message you submit through our Platform may be rejected by us or by a Talent (including without limitation if we deem it to be offensive, obscene, unlawful or otherwise inappropriate).  If that happens more than once, we may terminate your access to our Platform, remove or ban you (and any account you created or control), or take other appropriate action in our sole discretion, including terminating your license to use any Product IP or other offering under these Terms and requiring you to take the actions outlined in this Section 2, without limiting the further remedies available to us in law or in equity.
  2. Additional Terms

Some products or services offered through our Platform may have additional terms and conditions (“Additional Terms”). If Additional Terms apply, we will make them available to you in connection with that product or service. By using that product or service, you agree to the Additional Terms. To the extent that the Additional Terms conflict with any of these Terms, these Terms will apply unless the Additional Terms expressly say that some or all of these Terms do not apply or are subject to the Additional Terms.

  1. Eligibility
    • Age: By using our Platform or purchasing a Product, you represent and warrant to us that you are at least the age of majority in your jurisdiction of residence, or you are at least the age of majority in your jurisdiction of residence and have given us your consent to allow any of your minor dependents to use our Platform or purchase a Product.
    • Eligibility: You further represent and warrant that:
      • you have not been prohibited from using or accessing any aspect of our Platform by us or pursuant to any applicable law or regulation;
      • you will comply with all applicable terms of any third party payment provider we select, and you are not on a prohibited list of that payment provider;
      • you (and any account that you created or control on our Platform) have not been previously banned or removed from our Platform for any reason; and
      • you are not a convicted sex offender.
  1. Fees and Payment
    • Fees: The price of a Product is specified on the applicable ordering page of our Platform. You agree to pay all amounts due in accordance with the payment terms in effect when you purchase a Product.
    • Currency: All transactions are: (i) in Canadian dollars, if you are accessing our Platform or purchasing a Product from Canada, (ii) in U.S. dollars, if you are accessing our Platform or purchasing a Product from the United States, (iii) in pound sterling, if you are accessing our Platform or purchasing a Product from the United Kingdom, and (iv) in Euros, if you are accessing our Platform or purchasing a Product from a country in the Euro Zone. In all other cases, transactions are in U.S. dollars.
    • Payment: You may purchase a Product by using a valid payment card through the applicable third party payment provider (for App for iOS, Apple’s in-app payment mechanism; for our website and App for Android, the payment provider we select) or valid gift certificate. You must provide the third party payment provider with valid payment information (PayPal, Visa, MasterCard, or other issuer accepted by the payment provider). You acknowledge and agree that we do not operate, own, or control the payment provider. Your use of your payment card is governed by your agreement with and the privacy policy of the payment provider, not these Terms. You agree to immediately notify the payment provider of any change in your billing address (or other information) for your payment card. You may not return or exchange a Product and no refunds will be issued.
    • App for iOS: If we reject your order for any reason after payment has been processed, your account will be issued a credit for the value of your purchase. The credit will be maintained in your account and may be redeemed only for purchases on the App for iOS. If, when you make a purchase while logged into your account on the App for iOS, your account has a credit balance, the balance will be redeemed for that purchase (until fully redeemed) and you will be charged for any remaining portion of the price. Credit balances are not refundable, cannot be transferred, cannot be used outside of the App for iOS, and expire or extinguish immediately when redeemed. By making a purchase on the App for iOS, you represent that you are a resident of a country or territory in which payment in the local currency is supported by the App (as listed here). If you are a resident of a country or territory in which payment in the local currency is not supported by the App for iOS (or located in a country or territory in which payment in the local currency is not supported by the App for iOS), your purchase will not be permitted; however, if such purchase is permitted, we reserve the right to cancel your request and no refund will be issued. The countries and territories and respective local currencies supported by the App for iOS are determined by Apple and not by us and are subject to change at any time.
    • Website and App for Android: By providing your payment information, you agree that we may place a pre-authorization hold and, after your personal message has been accepted and your purchase is complete, authorize the payment provider to immediately charge you for all amounts due and payable with no additional notice to or consent from you.
    • We reserve the right (but are under no obligation) to cancel your Product purchase if: (i) your payment method is declined; or (ii) you have previously been banned or removed from our Platform for any reason. We also reserve the right at any time to change our fees and payment procedures, including its payment options and terms, either immediately upon posting on our Platform or by other notice to you.
    • Payment Questions: If you have a question about a purchase made on the App or a charge to your payment card, please contact us at mvh@instantautographs.com. We have the sole discretion to determine how billing disputes between us will be resolved.
  2. Ownership
    • You acknowledge and agree that all of the Product IP licensed to us by our Talent or other licensor is owned by that Talent or that other licensor.
    • We or our licensors own all right, title, and interest in and to: (i) our Platform and all content or components thereof, including all software, ideas, processes, data, text, media, and other content available on our Platform (individually, and collectively, “Content”); and (ii) our trademarks, logos, and brand elements (“Marks”). Our Platform, Content, and Marks are each protected under Canadian, U.S. and international laws. You may not duplicate, copy, or reuse any portion of the HTML/CSS, JavaScript, visual design elements, or concepts without our prior express written consent.
    • You hereby grant to us a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised (including social media platforms), to use, reproduce, license, distribute, modify, adapt, reformat, publicly perform, publicly display, create derivative works of, and otherwise use any Product you purchase for the purposes of operating and providing our Platform, developing and improving our products and services, and advertising, marketing, and promoting our Platform and our products and services. You hereby waive any and all moral rights or “droit moral” that you may have in any information you submit through our Platform for use in connection with a Product, and you represent and warrant that no third party has any moral, “droit moral,” or other rights in any such information.
  3. Privacy

Your privacy is important to us. Our Privacy Policy explains how we collect, use, and share personal information and other data. By using our Platform, you agree to our Privacy Policy.

  1. Third Party Content and Interactions

Our Platform may contain features and functionalities that link to or provide you with access to third party content, that is completely independent of us and our Platform, including websites, platforms, directories, servers, networks, systems, information, databases, applications, software, programs, products or services, and the Internet in general. Your interactions with third parties, including users and Talents, found on or through our Platform are solely between you and the third party. However, you agree not to contact or interact with any Talent except as expressly permitted through our Platform. You also agree that we may, in our sole discretion, intercede in any dispute relating to our Platform and you will reasonably cooperate with us if we choose to do so. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities of any kind or nature incurred as the result of any such interaction. You hereby release us and all of our affiliates and subsidiaries, and all of their and our shareholders, directors, officers, employees and representatives from claims, demands, and damages (actual and consequential) of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes or our Platform.

  1. Links

Our Platform may contain links to social media platforms or third party websites. You acknowledge and agree that: (a) the link does not mean that we endorse or are affiliated with the platform or website; and (b) we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to your use of the platform or website. You should always read the terms and conditions and privacy policy of a platform or website before using it.

  1. Changes to our Platform

You acknowledge and agree we may change or discontinue any aspect of our Platform at any time, without notice to you.

  1. Termination and Reservation of Rights

You may cancel your Platform account at any time by following the instructions contained within your account or by contacting us at mvh@instantautographs.com. We reserve the right to terminate access to our Platform to any person, including you, at any time, for any reason, in our sole discretion. If you violate any of these Terms, your permission to use our Platform automatically terminates and you are not permitted to purchase any Products.

  1. Prohibited Uses

In addition to any other prohibition set forth in these Terms, you are prohibited from using our Platform or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights, the Product IP, or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of our Platform or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of our Platform or any related website, other websites, or the Internet. We reserve the right to terminate your use of our Platform or any related website for violating any of the prohibited uses.

  1. Indemnification

You agree to indemnify, defend, and hold harmless IA and its parents, subsidiaries, affiliates, officers, employees, directors, shareholders, agents, partners, vendors, and licensors (each, an “IA Party,” and collectively, “IA Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature arising from, out of, in connection with, or relating to: (a) these Terms; or (b) use of our Platform. We are entitled to select counsel for and control the defense of any claim for which you are obligated to indemnify us pursuant to these Terms. You will reasonably cooperate with us in connection with any such claim.

  1. Disclaimers and Limitations on our Liability
    • We have made every effort to display as accurately as possible the colours and images of the Products shown on our Platform. However, we cannot guarantee that your computer monitor's display of any colour will be accurate.
    • We and our Talents reserve the right, but are not obligated, to limit the sales of our Products or services to any person, geographic region or jurisdiction. We and our Talents may exercise this right on a case-by-case basis. We and our Talents reserve the right to limit the quantities of any Products or services that are offered through our Platform. All descriptions of Products or pricing of Products are subject to change at any time without notice, at the sole discretion of us and our Talents. We and our Talents reserve the right to discontinue any Product at any time. Any offer for any Product or service made on our Platform is void where prohibited.
    • Neither we nor our Talents warrant that the quality of any Products, service, information, or other material purchased or obtained by you will meet your expectations, or that any errors in any such Product, service, information or other material will be corrected.
    • You acknowledge and agree that your use of our Platform is at your own risk and that our Platform is provided on an “as is” and “as available” basis. We do not guarantee, represent or warrant that your use of our Platform will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the use of our Platform will be accurate or reliable. You agree that from time to time we may restrict or prevent access to our Platform for indefinite periods of time or may remove or terminate our Platform at any time, without notice to you.
    • To the extent permitted by applicable law, we disclaim all warranties, conditions, and representations of any kind, whether express, implied, statutory, or otherwise, including those related to merchantability, fitness for a particular purpose, non-infringement, and arising out of course of dealing or usage of trade.
    • In particular, we make no representations or warranties about the accuracy or completeness of the Products or of the content available on or through our Platform or the content of any social media platform or third party website linked to or integrated with our Platform. You acknowledge and agree that the IA Parties will have no liability for any: (i) errors, mistakes, or inaccuracies of content on our Platform or in our Products; (ii) personal injury, property damage, or other harm resulting from your access to or use of our Platform or the purchase of any Product; (iii) any unauthorized access to or use of our servers, any personal information, or user data; (iv) any interruption of transmission to or from our Platform; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through our Platform; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any content posted or shared through our Platform.
    • You acknowledge and agree that any material or information downloaded from or otherwise obtained through our Platform, including any digital Product, is done at your own risk and that you will be solely responsible for any damages, losses, costs, expenses, or liabilities arising from or in connection with doing so. No advice or information, whether oral or written, obtained by you from us or through our Platform will create any warranty not expressly made by us in writing.
    • To the fullest extent permitted by applicable law, you acknowledge and agree that in no event will any IA Party be liable to you or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products, arising out of or in connection with these Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability, or otherwise, and whether or not we have been advised of the possibility of such damages.
    • To the maximum extent permitted by applicable law, our total cumulative liability to you or any third party under these Terms, including from all causes of action and all theories of liability, will be limited to and will not exceed the amounts actually received by us from you during the 12 months preceding the claim giving rise to such liability.
  2. Other Provisions
    • Force Majeure: Under no circumstances will we be liable for any delay or failure in performance due in whole or in part to any acts of God, natural disasters (such as earthquakes, storms, floods, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, pandemics, epidemics, or any other event or cause beyond our reasonable control.
    • Choice of Law and Jurisdiction: These Terms will be governed by and construed in accordance with the laws of the Province of Ontario, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms or our Platform will be filed only in the applicable courts located in Toronto, Ontario, Canada. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
    • Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
    • No Waiver or Amendment: Our failure to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future and will not be deemed to modify these Terms.
    • Assignment: We may, at any time, assign our rights and obligations under these Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law.
    • Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
  3. Changes to these Terms

We may change these Terms. If we do, we will post the revised Terms on our Platform and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, by agreeing when you create an account or login to an existing account, or using or continuing to use our Platform after the revised Terms have been posted); otherwise, they will be effective 30 days after posting.