ShineOn Terms of Service
ShineOn’s service (the “ShineOn Service”) is located at ShineOn.com and is operated by That’s No Moon, Inc. The ShineOn Service provides Sellers with the ability to create and sell custom jewelry and buyers with the ability to find high-quality, unique jewelry products.
Use of the ShineOn Service
2. Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. Please immediately notify ShineOn of any unauthorized use of your password or account or any other breach of security.
3. Promotions: Any contests, sweepstakes, surveys, games or similar promotions (collectively, “Promotions”) made available through the ShineOn Service may be governed by specific rules that are in addition to these Terms of Service. By participating in any Promotion, you will become subject to those rules. To the extent that the terms and conditions of the Promotion rules conflict with these Terms of Service, the terms and conditions of the Promotion will control.
4. Age Requirement: If you are under 13 years of age, you are not authorized to use the ShineOn Service. If you are under 18 years old, you may use the ShineOn Service only with the approval of your parent or guardian.
5. Applicable Laws: In connection with your use of the ShineOn Service, you will comply with all applicable laws, regulations and industry standards.
6. General Practices and Instructions Regarding Use: You will comply with any instructions provided to you by ShineOn in connection with your use of the ShineOn Service. ShineOn may establish general practices and limits concerning use of the ShineOn Service. ShineOn reserves the right to change its instructions, general practices and limits at any time, in its sole discretion, with or without notice.
These terms govern the dealings between ShineOn, a division of That’s No Moon, Inc., and the jewelry sellers (“ Sellers”) with whom we do business. By opening an account with us, you agree that these terms are binding on you.
7. Ordering and Payment:
a. Overview. ShineOn designs, develops, manufactures and sells custom jewelry items (“ Items”) based on two dimensional pictures, vectors or drawings and other specifications (“ Initial Drawings”) submitted to us by Sellers (“ Initial Submissions”).
b. Design Fee. ShineOn holds the right to charge Sellers a non-refundable design fee per Item (“ Initial Fee”) payable with each Initial Submission.
c. Models. Once a Seller submits the Initial Drawings and/or submits the Initial Fee for an Item, we will prepare 3D models for manufacturing of the Item ( “ 3D Models”) and photorealistic life-like renderings (“ Renderings”) of the Item. Our goal is to return the Renderings to the Seller for approval within 10 days of the Initial Submission.
d. Sales. Once the Seller has approved the 3D Models and Renderings, we will offer the Item on our website for sale to retail customers (“ Platform Sales”); and/or
e. Platform Sales. ShineOn will manufacture items ordered via Platform Sales when we have received and accepted the order and received payment in full from the retail customer. Our goal is to ship these orders to the retail customer within 4 weeks following payment. A commission will be available for payout, which is equal to the “base price” in the Seller Portal at sellers.shineon.com, on each such order after we receive full payment from the retail customer, and after each item is sent to be manufactured. We will not manufacture or ship the Item until we receive full payment from the retail customer.
f. Pre-Order. ShineOn will also, if requested by the Seller, manufacture finished goods inventory of an Item (in lots of 15 of more) when we have received from the Seller, an order, issued an invoice to the Seller and received payment in full of the invoiced amount, typically for the base costs of the items. In circumstances when an invoice is not available to the Seller, ShineOn can issue a negative balance towards the Sellers current payout amount. ShineOn will then manufacture store such items and ship them to retail buyers against orders from such buyers.
g. Pricing. ShineOn pricing does not include sales, use or similar taxes. The purchaser, not us, is responsible for payment thereof. Our pricing does not include the cost of shipping and insurance which must be paid before we ship. Items are shipped FOB our facility and risk of loss passes on shipment.
h. Discounts and Coupons. We reserve the right to offer site-wide coupons and discounts on all Items. Discounts and Coupon amounts allowed on sale of Items will be deducted from the Seller’s commissions.
i. Payment. We will pay commissions, at the election of the Seller, through PayPal or by check. We do not currently make wire transfers.
8. Warranty: We warrant to the Seller that each Item will be manufactured substantially in accordance with the 3D Models, subject to modest variations that do not materially degrade functionality or appearance. We will replace any Item that does not conform thereto if it is returned to us undamaged within 14 days of initial shipment.
a. WE MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
b. THE RIGHT OF RETURN STATED HEREIN IS THE SELLER’S SOLE REMEDY FOR BREACH OF WARRANTY
9. Ownership and Licensing:
a. By submitting the Initial Submissions to us, the Seller i) represents and warrants that the Seller is the sole owner of the designs set forth therein (“ Designs”) , free and clear of all liens, claims and encumbrances and ii) transfers to us all right, title and interest (including the copyright) in and to the Initial Drawings and the resulting Designs. ShineOn owns all rights thereto and to the Renderings and 3D Models prepared by us. We make no ownership claim to any Seller 3D Models submitted to us unless they are copies of designs already offered by us.
b. We grant the Seller a limited, sub-licensable, license to use the Renderings in the marketing and sale of Items, subject in all events to the terms hereof. The license does not include the right to make the Items, to use 3D Models for any purpose, or to use the Designs or Renderings for any purpose other than marketing and sales of the Items as described herein.
c. Sellers who submit third-party materials, including text and trademarks (“ Third-Party Materials”) to us must supply proof that they have a valid right to use such materials and that we have a valid right to use such Third-Party Materials as contemplated herein. We reserve the right to refuse to post any and all Third-Party Materials and to remove them from our website at any time.
d. The Seller is prohibited from making or having made any of the Items. Only ShineOn may make the Items. With respect to items made from Seller 3D Models submitted to us, this prohibition will terminate upon termination of the Exclusive License.
e. If we apply for copyright protection under applicable law the Seller will cooperate with us and sign such documents as we may request for that purpose.
10. Infringement: If a third party asserts any ownership rights to an Item or Third-Party Materials, we may, in our discretion: a) contest the assertion; b) settle with the claimant; c) recover from the Seller (by offset and otherwise) the costs and damages we incur as a result; d) alter the Design or text so as to be non-infringing; e) remove the material from our website and/or e) stop manufacturing and selling the Item; f) provide the claimant with the Seller’s contact information.
11. Intellectual Property Complaints: ShineOn takes any allegations of infringement seriously. If ShineOn receives any complaint or allegation that your item or any resulting merchandise constitutes an unauthorized use of a third party’s rights, you understand that ShineOn may terminate or delay your item, in its sole discretion. In addition, you understand that ShineOn may release the Seller’s contact information to any third party that satisfactorily alleges a violation of its rights.
ShineOn will consider complaints of possible infringement only from parties that own, or have the exclusive right to exploit, the applicable intellectual property. If you believe that a ShineOn user has infringed upon your rights, please notify ShineOn at email@example.com. You may also contact us by mail at the address provided at the end of these Terms of Service, attention Legal Department.
You must include with your notification the following information:
a) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property that you allege is being infringed;
b) The URL to the ShineOn item(s) used in connection with the sale of the allegedly infringing merchandise;
c) Identification of the copyright, trademark or other rights that allegedly have been infringed, including proof of ownership (such as copies of subsisting trademark or copyright registrations);
d) Your full name, address, telephone number(s) and email address(es);
e) A statement that you have a good-faith belief that use of the material in the URL submitted is unauthorized by the rights owner, or its licensee, and such use amounts to infringement under federal or state law; and
f) A statement, under penalty of perjury, that the information in the notification is complete and accurate and that you are authorized to act on behalf of the owner of the copyright or other right that is allegedly infringed.
12. Repeat Infringer Policy: ShineOn has adopted a policy of terminating, in appropriate circumstances and at ShineOn's sole discretion, users who are deemed to be repeat infringers. ShineOn may also at its sole discretion limit access to the ShineOn Service or terminate the memberships of any users who infringe or violate any intellectual property or other rights of others, whether or not there is any repeat infringement or violation.
13. Limitation of Liability: Except as provided in Sections 2 and 4, we shall not be liable to the Seller, and the Seller shall not be liable to us, for any consequential, incidental, lost profits or exemplary damages for breach hereof or any other matter arising in connection herewith and neither party will be liable for amounts in excess of amounts paid to it hereunder by the other.
14. Account: The Seller is required to establish an account with us prior to making any submissions. The Seller represents and warrants that all information submitted to us in such connection will be true and correct when submitted. Seller will amend the information as needed to insure its accuracy during the term hereof. The Seller is responsible for the security of the password and for any and all activities that occur in the account. The Seller must notify us as soon as possible if there is unauthorized access to or use of the Seller’s account.
15. Age: All Sellers must be at least 18 years old.
16. Legal: These terms and the parties’ actions are governed by the laws of New York. All disputes and litigation arising out of or related to these terms, including without limitation matters connected with the parties’ performance, will be subject to the exclusive jurisdiction of the courts of the State of New York or the Federal courts sitting therein. Each party hereby irrevocably submits to the personal jurisdiction of such courts and irrevocably waives all objections to such venue. You may only resolve disputes with us on an individual basis, and may not bring or participate in any class, representative or similar action, as a plaintiff, class member or otherwise.
17. Term: This arrangement may be terminated by either party at any time for any or no reason on 20 days prior written notice to the other. Provisions that by their nature should reasonably survive its termination or expiration shall so survive including sections 3,4,5 and 8.
18. Acceptable Use; Indemnity: Your use of the ShineOn Service, including the creation and implementation of items, is subject to these Terms of Service (including our Acceptable Use Policy). To the extent any item violates or is alleged to violate our Acceptable Use Policy or any other part of these Terms of Service, in addition to any other remedies, you agree that ShineOn has the right to withhold and redirect any funds collected relating to the item, which funds will be disbursed based on ShineOn’s internal policies (for example, ShineOn may give the funds to a charity where a item falsely states it is raising funds for that charity, or ShineOn may apply such funds to any judgment or settlement, and/or the reimbursement of ShineOn’s expenses, resulting from a third party’s claim of infringement) and to control the defense or settlement of any claim or suit resulting from any such violation or alleged violation; and you agree to fully cooperate with ShineOn in such activities. Without limiting the foregoing, you also agree to indemnify and hold ShineOn harmless from any and all liabilities, losses, damages and expenses arising out of your violation or any alleged violation of our Acceptable Use Policy or any other part of these Terms of Service, including, but not limited to, paying ShineOn’s judgments, losses, settlement, reasonable expenses, reasonable attorneys’ fees, and costs.
19. Quality of Artwork and Promotions: Each item must meet reasonable production standards. All of your advertisements or promotional descriptions, including content that is uploaded to the ShineOn Service, must be accurate and correct and must not include any content concerning non-ShineOn activities, events, products, services or promotions.
20. Proceeds: If you create a item through the ShineOn Service, you will be given a “base price” from ShineOn for each product. You will also have the opportunity to set the sale price for each product. Once your item is launched and products are sold, you will earn the difference between the base price and your sale price, less returns. You may request payout at any time. You are solely and fully responsible for payment of any income taxes applicable to the amounts you earn through the ShineOn Service. Prior to receiving your payout, you may be required to provide additional information to ShineOn as needed by ShineOn to comply with its reporting obligations.
21. Partnership Disputes: If you work with other people on your item, and there is a dispute between you and your partners, even though ShineOn receives notice of the dispute, ShineOn is entitled to make payouts and otherwise correspond with the original registrant. Alternatively, ShineOn may withhold payouts until the dispute is resolved, in ShineOn’s sole discretion.
22. Charities/Fundraising: You represent and warrant that any item you create that implicitly or explicitly relates to a charity or fundraising effort is authorized by such charity or fundraising effort, and you will ensure that your item description clearly and accurately states the percentage of proceeds that will be donated and to whom those proceeds will be donated.
23. Payment: If you purchase any merchandise through the ShineOn Service, you will be required to provide ShineOn information regarding your credit card or other payment instrument. You represent and warrant to ShineOn that such information is true and that you are authorized to use the payment instrument. You will be responsible for all taxes associated with your purchase of merchandise through the Service.
24. Loss and Cancellation: Title and risk of loss for all merchandise ordered by you will pass to you on our delivery to the shipping carrier. We reserve the right to cancel any order for any merchandise for any reason.
25. Service Content, Software and Trademarks: You are only authorized to use the ShineOn Service for the purpose of engaging in business transactions with ShineOn. You may not use any automated technology to scrape, mine or gather any information from the ShineOn Service or otherwise access the pages of the ShineOn Service for any unauthorized purpose. If you are blocked by ShineOn from accessing the ShineOn Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). The technology and software underlying the ShineOn Service or distributed in connection therewith are the property of ShineOn, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software.
The ShineOn Service may contain images, artwork, fonts and other content or features (“Service Content”) that are protected by intellectual property rights and laws. Except as expressly authorized by ShineOn, you agree not to modify, copy, frame, rent, lease, loan, sell, distribute or create derivative works based on the ShineOn Service or the Service Content, in whole or in part. Any use of the ShineOn Service or the Service Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by ShineOn.
The ShineOn name and logos are trademarks and service marks of ShineOn (collectively the “ShineOn Trademarks”). Other company, product and service names and logos used and displayed via the ShineOn Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to ShineOn. Nothing in these Terms of Service or the ShineOn Service should be construed as granting any license or right to use any of ShineOn Trademarks displayed on the ShineOn Service, without our prior written permission in each instance. All goodwill generated from the use of ShineOn Trademarks will inure to ShineOn’s exclusive benefit.
26. Third Party Material: Under no circumstances will ShineOn be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content or materials. To the maximum extent permitted under applicable law, the third party providers of such content and materials are express and intended third party beneficiaries of these Terms of Services with respect to their content and materials.
ShineOn may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of ShineOn, its users or the public.
27. Third Party Websites: The ShineOn Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. ShineOn has no control over such sites and resources and ShineOn is not responsible for and does not endorse such sites and resources. ShineOn will 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 content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the ShineOn Service are between you and the third party, and you agree that ShineOn is not liable for any loss or claim that you may have against any such third party.
28. Disclaimer of Warranties YOUR USE OF THE SHINEON SERVICE IS AT YOUR SOLE RISK. THE SHINEON SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING A BUYER’S RIGHT TO RETURN MERCHANDISE AND OBTAIN A REFUND TO THE EXTENT DESCRIBED IN OUR RETURN POLICY, SHINEON EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO ANY ITEM, MERCHANDISE OR SERVICE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
29. Limitation of Liability: SHINEON WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SHINEON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY MERCHANDISE, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL SHINEON’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID SHINEON OR SHINEON HAS PAID YOU IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
30. Termination: ShineOn, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the ShineOn Service and remove and discard any content within the ShineOn Service, for any reason. Further, you agree that ShineOn will not be liable to you or any third party for any termination of your access to the ShineOn Service.
31. Relationship Each party is an independent contractor in the performance of each and every part of these Terms of Service. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of its activities under these Terms of Service. You do not have the authority to commit ShineOn in any way and will not attempt to do so or imply that you have the right to do so.
32. Governing Law and Venue: Any and all claims, actions, and/or disputes arising out of your use of the ShineOn Services will be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws provisions or your actual state or country of residence. Subject to the arbitration clause immediately below, any claims, legal proceeding or litigation arising in connection with your use of the ShineOn Services must be brought in a court of competent jurisdiction located in New York County, State of New York, and you consent to the jurisdiction of such courts. This is a very important part of this agreement. By using the ShineOn Services, you agree to the choice of law and jurisdiction discussed above. If you do not wish to be bound by this clause, do not execute use the ShineOn Services.
33. Arbitration: FOR ALL RELIEF OTHER THAN EQUITABLE OR INJUNCTIVE RELIEF, ANY DISPUTE ARISING WITH RESPECT TO YOUR USE OF THE SHINEON SERVICES SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE RULES AND PROCEDURES OF JAMS ARBITRATION AND MEDIATION SERVICE.
THE SINGLE ARBITRATOR SHALL BE SELECTED BY JOINT AGREEMENT OF THE PARTIES. IN THE EVENT THE PARTIES CANNOT AGREE ON AN ARBITRATOR WITHIN THIRTY (30) DAYS OF THE INITIATING PARTY PROVIDING THE OTHER PARTY WITH WRITTEN NOTICE THAT IT PLANS TO SEEK ARBITRATION, THE PARTIES SHALL FOLLOW PROCEDURES AS SET FORTH BY JAMS WHEN THE PARTIES ARE UNABLE TO AGREE UPON THE ARBITRATOR. THE WRITTEN DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING ON THE PARTIES AND ENFORCEABLE IN ANY COURT. THE ARBITRATION PROCEEDING SHALL TAKE PLACE IN NEW YORK, NEW YORK, USING THE ENGLISH LANGUAGE.
BY AGREEING TO THIS ARBITRATION PROVISION YOU AGREE THAT, BY USING THE SHINEON SERVICES, YOU AND SHINEON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. THESE TERMS OF SERVICE EVIDENCE A TRANSACTION IN INTERSTATE COMMERCE AND THUS THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE TERMS.
THIS IS A VERY IMPORTANT PART OF THIS AGREEMENT. BY USING THE SHINEON SERVICES, YOU AGREE TO THE CHOICE OF LAW AND JURISDICTION DISCUSSED ABOVE. IF YOU DO NOT WISH TO BE BOUND BY THIS CLAUSE, DO NOT EXECUTE USE THE SHINEON SERVICES.
34. No Class Actions: YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED.
THIS IS A VERY IMPORTANT PART OF THIS AGREEMENT. BY USING THE SHINEON SERVICES, YOU AGREE TO THE CHOICE OF LAW AND JURISDICTION DISCUSSED ABOVE. IF YOU DO NOT WISH TO BE BOUND BY THIS CLAUSE, DO NOT EXECUTE USE THE SHINEON SERVICES.
35. General: These Terms of Service constitute the entire agreement between you and ShineOn and govern your use of the ShineOn Service, superseding any prior agreements between you and ShineOn with respect to the ShineOn Service. The failure of ShineOn to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court or arbitrator of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of ShineOn, but ShineOn may assign or transfer these Terms of Service, in whole or in part, without restriction. Notices to you may be made via either email or regular mail. ShineOn may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the ShineOn Service.
Questions? Concerns? Suggestions?
Please contact us with any questions regarding these Terms of Service or the ShineOn Service at firstname.lastname@example.org
Or by mail at:
119 High St.
Last Revised Dec 12, 2016