Terms of Service

Effective Date of Last Revision: September 26th 2017

Welcome to quirky.com (the “Site”), a web site that lets users submit product ideas and intellectual property for feedback from the Quirky community of Users (the “Community”), and possible selection by Quirky for development, commercialization, production, licensing, and/or sale.

The quirky.com web site and its associated services (the “Services”) may be found at the domain and its related subdomains found at www.quirky.com (the “Site”). The Site is owned and operated exclusively by Q Holdings, LLC., a Delaware limited liability corporation d/b/a Quirky (collectively referred to herein, together with its corporate affiliates, as “Quirky”, “us”, “we” or the “Company”).

By creating a user account and/or accessing or using the Site or by posting any content on the Site, you represent and warrant that you have read, understand and agree to be bound by these Terms of Use and this Privacy Policy (collectively “Terms of Service” or “Agreement”).

PUT SIMPLY:

Every online business needs to have its terms of service, these are ours, and we must ask that you accept them before using our website.

We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Service at any time without further notice. If we do this, we will post the changes to these Terms of Service on this page and will indicate at the top of this page the date these terms were last revised. If you have a user account prior to any such changes, you will be prompted to review the revised Terms of Service, and accept them, prior to logging in to your user account. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Site or the Services. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Service and to review such changes.

PUT SIMPLY:

A few times a year we need to update our terms, and we’ll do our best to let you know when we do.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.[1] [DS2]

PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN YOU ARE TRANSFERRING VALUABLE INTELLECTUAL PROPERTY RIGHTS TO QUIRKY FOR ITS COMMERCIAL USE.[DS3]

Basic Description of User Participation on the Site:

The Site is developed and operates using a variety of terms and phrases. The more commonly used terms are defined in more detail below. To summarize generally how the Site functions:

How the Site Functions:

Product Ideas are submitted by Users. Idea Submitters may make their Product Idea submissions viewable to only those Users who are invited to view, or viewable to all Users. By becoming a User on this website, you agree to keep all information disclosed to you on this website and all ideas submitted by you confidential and agree not to disclose such information and ideas outside of the Quirky community of Users. (See also “Confidentiality” section below).  All Product Ideas are viewable by select members of Quirky’s staff. In addition, all postings on the site automatically become available to the Company, when they are posted,  in order to consider[G4]  selecting them for development and/or commercialization, production and sale.

Once a Product Idea submission satisfies certain required elements, which the Company shall choose in its sole discretion and as set forth on the Site, the Product Idea automatically becomes a candidate for selection by the Company for development and/or commercialization, production and sale (if the Company so chooses, however, the Company may decide to evaluate the Product Idea before the idea satisfies the required elements). The Company will normally, however, select or reject Product Ideas made available by Idea Submitters for review by the Company, subject to satisfaction of the aforementioned required elements.

PUT SIMPLY:

Whether you choose to disclose your invention to all or some of community members, the Quirky staff can always see your inventions, and we can select your invention for production at any stage of the Quirky submission and review process.

Prior to or after satisfying the aforementioned required elements, an Idea Submitter may choose, in his/her sole discretion, to exchange an amount of his/her “Influence” (see below) associated with his/her Product Idea submission, in return for input from other Users that the Idea Submitter selects for inclusion in his/her Product Idea submission.

PUT SIMPLY:

We call potential royalties “influence.” You can choose to share your potential royalties or “influence” with other community members who help you with your invention submission.

The Company may, at its sole discretion and at any time, taking into consideration a variety of factors, select a Product Idea for development and/or commercialization, production and sale. If the Company rejects a Product Idea made available by an Idea Submitter to the Company as a candidate for development, production, commercialization, licensing and/or assignment, that Product Idea will either be kept in the “Review” phase and considered again in the future for development, or pushed back into the “Ideation” phase. If pushed back into the “Ideation” phase, a user may elect to submit an edited version of the Product Idea for entry anew into the foregoing process. It shall be at the sole discretion of the Company, however, whether to consider one or more edited versions of the Product Idea.

Product Ideas will be subject to one or more phases and/or projects, as set by Quirky, each of which is targeted to get Community ideas, suggestions and input related to a specific aspect of the development of the Product Idea (e.g., the selection of a name, or the color scheme for product). These phases and/or projects may happen prior to, and/or following, selection of a Product Idea for development and/or commercialization, production and sale.

For each phase/project, Users post their suggestions or ideas to solve or address the problem presented in that phase/project. If a Product Idea is viewable only to Users invited by the Idea Submitter, only invited Users can participate in a phase/project. If a Product Idea is viewable to all Users, all Users can participate in a phase/project. In either case, members of Quirky may choose to contribute to development.

PUT SIMPLY:

The Quirky staff will push your invention through different phases on the website whether it has been selected or rejected, and, if rejected, sometimes you’ll be able to edit the idea and sometimes you won’t. The Quirky staff can always edit your idea (which we sometimes do to help make it better).

Earning Royalties:

Users may receive “Influence” on a particular Product Idea through their contribution to such Product Idea, including submitting Product Ideas and contributing to Product Ideas during various phases and/or projects.

Once all the phases/projects related to a Product Idea are completed (or prior to completion at the discretion of the Company), the Company may then choose to commercialize the Product Idea by manufacturing and selling a physical embodiment of the Product Idea and/or by transferring intellectual property rights in the Product Idea to another party.

The Company will distribute a portion of all revenue generated from the commercialization of a Product Idea submitted on or after December 22, 2015, selected and developed through the Site, to those Users who contributed to the development of the Product Idea, in proportion to each User’s Influence, which is determined at the sole discretion of the Company[G7] .

Getting IP Back:

If the Company fails to take steps to develop, commercialize or patent a Product Idea within one (1) year after it is submitted, the Idea Submitter may request that the Company return to them their portion of the intellectual property associated with the Product Idea. However, in no event shall the Company be required to transfer any intellectual property contributed by Quirky or by any third parties including, but not limited to, other Users who “Influence” the Product Idea.

PUT SIMPLY:

We don’t have to give you your IP back. But, if after 12 months from the date you submit your idea, we haven’t started to commercialize your idea you can request your IP back by sending an email here. Keep in mind, if your invention has collaborators you are only able to request to have your specific contribution granted back to you.

THE SELECTION, DEVELOPMENT, MANUFACTURE, SALE AND COMMERCIALIZATION OF ANY PRODUCT IDEA IS SUBJECT TO THE COMPANY’S SOLE AND ABSOLUTE DISCRETION AND THE COMPANY RESERVES THE RIGHT, FOR ANY OR NO REASON, TO (I) REJECT ANY SUBMITTED PRODUCT IDEA, (II) REFUSE TO POST ANY SUBMITTED PRODUCT IDEA TO THE SITE, (III) TERMINATE THE DEVELOPMENT OR ANY PHASE RELATED TO A PRODUCT IDEA, (IV) TERMINATE THE SALE AND OR MANUFACTURE OF ANY PRODUCT IDEA, OR (V) SELL, LICENSE, OR TRANSFER A PRODUCT IDEA, AND/OR ANY INTELLECTUAL PROPERTY RELATED THERETO, TO ANY THIRD PARTY.

Let’s Define a Couple Key Terms:

All initial capitalized terms used in this Agreement shall have the meaning ascribed to such terms. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meaning listed below:

“Selected Product Idea” means any Product Idea that is selected by the Company for development and/or commercialization.

“Quirky Confidential Information” means all Product Ideas and User Content or related information submitted to the site by a User or member of Quirky, and any confidential information generated by a third party (whether a third party involved in the development and/or commercialization of a product, and/or in a transaction regarding a product and/or regarding intellectual property in a product, or otherwise), and any other non-public Site Content or related information.

“Idea Submitter” means any User that submits a Product Idea to the Site.

“Influence” is the measure of a User’s contribution to a Product Idea, as determined solely at the discretion of the Company.

“Intellectual Property” means any Invention, conception, idea, discovery, writing, trade name, trademark, service mark, copyright, right of publicity, mask work or any other material subject to, protected or protectable under state, federal, or foreign patent, trademark, copyright, trade secret, rights of publicity, or similar laws. Notwithstanding any U.S. or foreign legal provision to the contrary, Intellectual Property shall include any methods of doing business, and computer software and hardware and/or processes.

“Inventions” includes conceptions, ideas, discoveries, inventions, developments and improvements, whether or not reduced to practice and whether or not patentable or otherwise within the definition of Intellectual Property.

“Legacy Product Idea” means a product concept, design or idea, whether developed or commercialized, or not that was submitted as a Product Idea on the Site on or before December 21, 2015.

“Person” means any individual, trust or legal entity.

“Personally Identifiable Information” means information that is or that can be reasonably linked to a specific User.

“Product Idea” means Intellectual Property and/or an Invention, product concept, design or idea that is submitted by a User to the Site as a Product Idea on or after December 22, 2015.

“User Royalty” is a royalty or fee paid to a User for contributing a Product Idea, or to a Product Idea, as provided for herein. The combined User Royalty (for all Influencers) for a Product Idea submitted on or after December 22, 2015, shall be: (a) up to 3% of product revenue from sales of products by Quirky (see, Three Percent Transaction below); or (b) up to 1.5% of revenue associated with licensing by Quirky to a third party of Intellectual Property Rights associated with a Product Idea (see One and One Half Percent Transaction below); or (c) up to 5% of revenue associated with sale by Quirky to a third party of Intellectual Property Rights associated with a Product Idea (see Five Percent Transaction below). It shall be entirely at the Company’s discretion to determine whether a particular Product Idea, or a given contribution to a Product Idea, qualifies a User for a User Royalty, and it shall be entirely at the Company’s discretion whether and how to allocate any User Royalties among multiple Users.

“Three Percent Transaction” means any transaction resulting in Product/IP Revenue to Company from any sale of product by Quirky to a Third-Party distributor, wholesaler, or retailer, when that product is based on a Product Idea submitted on or after December 22, 2015. A total of up to a maximum of three percent (3%) of the Product/IP Revenue associated with that transaction shall be paid as the combined User Royalty to all Users determined by the Company to be eligible to receive User Royalty, as set forth herein.

“One and One-Half Percent Transaction” means any transaction resulting in Product/IP Revenue from the licensing by Quirky of Intellectual Property Rights based on a Product Idea submitted on or after December 22, 2015. Up to a maximum of one and one half (1.5%) of the Product/IP Revenue associated with that transaction shall be paid as the combined User Royalty to all Users determined by the Company to be eligible to receive User Royalty, as set forth herein. The total percent to be paid, and the division of User Royalty among Users shall be solely at the Company’s discretion. In the event that multiple forms of Intellectual Property or multiple Intellectual Property Rights (e.g. multiple patents, or patents and trademarks, etc.) are included in a license, it shall be at the sole discretion of the Company to determine the allocation of User Royalty among any Users who contributed to that Intellectual Property or those Intellectual Property Rights.

“Five Percent Transaction” means any transaction resulting in Product/IP Revenue from the sale by Quirky of Intellectual Property Rights based on a Product Idea submitted on or after December 22, 2015. Up to a maximum of five percent (5%) of the Product/IP Revenue associated with that transaction shall be paid as the combined User Royalty to all Users determined by the Company to be eligible to receive User Royalty, as set forth herein. The total percent to be paid, and the division of User Royalty among Users shall be solely at the Company’s discretion. In the event that multiple forms of Intellectual Property or multiple Intellectual Property Rights (e.g. multiple patents, or patents and trademarks, etc.) are included in a sale, it shall be at the sole discretion of the Company to determine the allocation of User Royalty among any Users who contributed to that Intellectual Property or those Intellectual Property Rights.

“Product/IP Revenue” is the monetary sum, in the form of net revenue, received by Quirky from the sale of a product or from the sale or licensing to a third party of Intellectual Property Rights associated with a Product Idea. The Company will make distributions of the User Royalty associated with particular Product/IP Revenue to those Users who are allocated a User Royalty as provided for herein, with such distribution to be made by the Company within 90 days after the Company confirms receipt of Product/IP Revenue. The Company shall be entitled to deduct from gross revenue any commercially reasonable and/or customary deductions to compute the amount of net revenue, with such deductions to include, but not necessarily be limited to, returns, warranty claims, charge backs and other direct offsets against gross revenue. Product/IP Revenue does not include, and a User Royalty shall not be due for, any revenue of any form obtained by Quirky in connection with a sale of its business or a portion of its business, whether shares therein or otherwise, nor shall the obligation to pay a User Royalty be binding on any successor-in-interest to Quirky’s business or a portion thereof.

“Web Store Sale” means a sale through the Site web store located at www.quirky.com/shop resulting in Product Sales Revenue.

PUT SIMPLY:

Check out our blog for a detailed explanation of how royalties work.

Quirky pays the community out of the revenue that comes from each product sale, or from each IP sale or license. That means we can only pay you after the product sells or IP sells or gets licensed, and the money for that product or IP has been collected by Quirky. We therefore schedule royalty payments for every product or IP item separately.

We have the right to alter the royalty payments on a product for any reason.

If Quirky is acquired for a sum of money, that money is not considered a royalty (sorry folks).

“Proprietary Information” includes any scientific, technical, trade or business secrets of any person or entity and any scientific, technical, trade or business materials that a person or entity treats, or is obligated to treat, as confidential or proprietary, including, but not limited to, Inventions belonging to a person or entity and confidential information obtained by or given to a person or entity about or belonging to a third party. In no event, however, shall any User submit any Proprietary Information which includes any information that the User is prohibited from providing to Quirky or submitting to the Site by any applicable federal, state, or foreign law.

PUT SIMPLY:

If you’re keeping a secret, or signed an NDA with someone else, then please don’t share the information with us!

“Site Content” means all information on the Site and available through the Services, including without limitation designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format, and their selection and arrangement.

“User” is anyone that creates an account online and is registered to post content on the Site and includes all other Persons who participate on the Site other than the Company.

“User Account” is an account created by a User on the Site. Only one User Account may be opened per person. Opening more than one User Account is a violation of these Terms of Use.

“User Content” includes all information that a User may transmit to the Site and/or the Company and which may become available for use or display, including without limitation all designs, text, graphics, pictures, video, animation, information, applications, software, programs, music, sound, audio, schematics, illustrations, diagrams, data, and other files and creative output, in whatever format. User Content also includes information a User provides to Quirky outside of the Site in relation to User Content transmitted to the Site, and such information shall constitute User Content transmitted to the Site under this Agreement.

Quirky Control of the Site and Services:

You acknowledge that Quirky is a service provider that has created the Site to allow Users to interact via the Site with each other and/or Quirky personnel regarding topics and content chosen by Users, and that Users can alter the information presented on the Site on a real-time basis. Quirky generally does not regulate the content of communications between Users or Users’ interactions with the Services. As a result, Quirky has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of User Content provided by Users. Nonetheless, Quirky reserves the right to monitor and/or limit any User Content posted by a User to the Site, including, without limitation Product Ideas.

PUT SIMPLY:

We have a community manager who does her best, but we can’t control everything posted on the site, so please treat each other with respect.

Other Parties’ Rights in Content:

You acknowledge that: (i) by using the Site you will have access to User Content provided by other Users, and (ii) User Content and Site Content may be provided under license by independent content providers, including contributions from other Users. The Company may or may not pre-screen User Content submitted by Users to the Site. You acknowledge that the Company and other Users have rights in their respective Site Content and User Content under copyright and other applicable laws and treaty provisions, and that except as described in this Agreement, such rights are not licensed or otherwise transferred by mere use of the Services or posting on the Site. You accept full responsibility and liability for your use of any Site Content or User Content in violation of any such rights. You agree that your creation or submission of any User Content is not in any way based upon any expectation of compensation from the Company or any other Users.

Media Waiver:

You agree that the Company has the absolute right and permission to use your name, voice, image, likeness, rights of publicity and your applicable User compensation information, including for example any commissions paid and your Influence percentage, as well as representations made by you, in any media (including, without limitation, television, print, radio and the Internet), world-wide, for the purposes of advertising, promoting, reporting and disseminating information about the Company, the Company’s business or a Product Idea.

Payments by the Company to Users:

While one aspect of the Site is to provide Users, including Idea Submitters with the right to share in Product/IP Revenue, Users should not participate on the Site or in the Services primarily for financial gain, as any actual monetary compensation actually received by a User in connection with the Site, may or may not bear any relation to the actual time invested on the Site, or the quality or quantity of User Content submitted, or Influence allocated. Because the Company may elect in its sole discretion to not commercialize or to cease commercializing any Selected Product Idea at any time, there can be no guarantee that you will ever receive any payments or actual compensation in connection with participating on the Site or providing User Content even if you participate or provide User Content. Quirky makes no representations or warranties regarding any actual monetary compensation that may be earned in connection with use of the Site or the Services. Quirky’s obligation to pay User Royalty to Users, who are allocated such amounts pursuant to the Site, is limited to paying such allocations based upon Product/IP Revenue that is actually received by Quirky.

PUT SIMPLY:

Use Quirky because it’s fun, not because you expect to make money. We’ll do our best to help you earn royalties and cash out, but we can’t guarantee any payments (only smiles).

We can only pay you after we get paid. If we don’t get paid, you don’t get paid.

Cashing Out:

Notwithstanding any User Royalty that may be allocated to your account, Quirky shall be under no obligation to distribute such amount to you until such time as the aggregate amount payable in your account exceeds $50. The Company will calculate all payments owed by the Company to a User on a quarterly basis as set forth above. All amounts earned by a User shall be rounded down to the nearest tenth of cent. If the total amount that a User earns for the previous day is less than a tenth of penny (e.g. $.001) then such amount shall be rounded down to zero and no amount will be credited to the User. Quirky reserves the right to reset all User accounts, for which the User has not logged in within the prior two years, below $50 to $0 and to write-off all such unpaid amounts and Quirky shall have no liability for any such write-offs. Prior to resetting any such account to $0, Quirky will contact the User associated with the account at the email address associated with the account, and request that the User log into the account within thirty days. If the User logs into the account within thirty days, Quirky will not reset the account balance. Quirky also reserves the right to withhold or forfeit payments due to any User that has breached this Agreement or any of the other guidelines related to use of the Site. The Company will make payments to Users, upon request from Users for payments, by check, ACH, wire transfer (fee assessed to User) or through any other commercially reasonable manner adopted by the Company from time to time.

What if I die before I cash out?

Subject to the foregoing terms, upon the death of a User, Quirky will direct payments associated with the Influence accruing from the deceased User’s participation on the Site prior to such User’s death, to a replacement payee if: (a) the Person requesting a replacement payee presents verifiable documentation supporting the replacement payee’s legal entitlement to the deceased User’s payments, and (b) the request for a replacement payee is received by Quirky within one year from the date of the deceased User’s death. If Quirky does not receive a request for replacement payee that complies with the foregoing conditions, Quirky may cancel the deceased User’s account, and write-off any unpaid amounts, with no liability for any such write-offs.

Legacy Product Ideas:

The Company is under no legal obligation to make any payments to Users for any past or future revenue derived from, or associated, with a Legacy Product Idea, nor is it under any legal obligation to make any other payments associated with any obligations assumed by, or entered into by, any predecessors-in-interest of the Company, including, any predecessors-in-interest which went into bankruptcy. However, the Company may, in its sole discretion, choose to make discretionary payments to Users who had accumulated Influence in Legacy Product Ideas. Such payments, if any, shall only be made to those Users who have accepted the present Terms of Service on or after June 6, 2016 and any updated version thereafter. In the event that the Company chooses to make any such discretionary payments, they are entirely voluntary and discretionary by the Company, create no ongoing or other obligations by the Company, and may be modified or discontinued by the Company at its sole discretion for any reason and at any time[G12] .

PUT SIMPLY:

Quirky went bankrupt in 2015.

When this happened, their obligations to pay royalties on every product they had made up until that point, and every idea on the site, were all forfeited. All of the royalty payments owed to community members at that point in time were also forfeited.

Quirky was purchased by new ownership in December 2015.

If you have “influence” in a legacy product (a product submitted and/or developed prior to December 22nd 2015), and that product earns royalties AFTER December 22nd 2015, you will be paid for your “influence” according to the new royalty rates (see here) on all sales from that date forward.

But, if you want to cash out, you have to accept the current Terms of Service (what you’re reading now).

Tax Withholding and Quirky Payee Information Form:

You acknowledge and agree that you are responsible for all taxes due on any payments made to you in connection with your participation on the Site. The Company will be under no obligation to make any payments to you unless you have properly completed and submitted the Quirky Payee Information Form (the “QPIF”) and the information required in the registration process related to backup withholding taxes. Backup withholding taxes are a type of withholding for federal income taxes on certain types of income. Quirky may be required by law to withhold these taxes from amounts payable to you unless you are otherwise exempt from backup withholding. US citizens and resident aliens will typically be exempt from backup withholding if they properly report their name and Social Security number to Quirky on the QPIF and that information matches the IRS records.

PUT SIMPLY:

The only guarantees in life are death and taxes. So you must fill out all the information we ask you for in order to receive payment from Quirky, and so that you can also pay the man.

Service Interruptions and Site Changes:

Quirky reserves the right to interrupt the Site with or without prior notice for any reason or no reason. You agree that Quirky will not be liable for any interruption of the Site, delay or failure to perform. Quirky has the right at any time for any reason or no reason to change and/or eliminate any aspect(s) of the Site and/or the Services as it sees fit in its sole discretion.

Fees

Certain aspects of the Site, such as posting a Product Idea, may be for a fee or other charge. These fees and charges are described on the Site, and in the event you elect to use paid aspects of the Services, you agree to the pricing, payment and billing policies applicable to such fees and charges, posted on the Site. Quirky may add new services for additional fees and charges, or proactively amend fees and charges for existing services, at any time in its sole discretion. All fees paid to the Company are solely for services provided by the Company through the Site and no payments made in connection with the Site should be made with any expectation by a User to receive any return payment, including any portion of Product/IP Revenue or User Royalty from the Company.

Eligibility:

Participation in the Site is void where prohibited. Any registration by, use of or access to the Site by anyone under 18 requires verifiable parental or guardian consent and parental or guardian agreement to these Terms of Use, and any such registration, use or access without such verifiable consent and agreement is unauthorized, unlicensed and in violation of these Terms of Service. By using the Services or the Site, you represent and warrant that you are 18 or older or have completed the process required by this Site to obtain parental or guardian consent and agreement, and that you agree to and will abide by all of the terms and conditions of this Agreement.

Registration Data; Account Security:

In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”), including, but not limited to, your full legal name, postal address, city, state and country of residence, and country of citizenship; (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data and any other information you provide to Company, and keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

Proprietary Rights in Site Content; Limited License:

All Site Content is the proprietary property of the Company, its Users or other licensors, with all rights reserved. No Site Content may be modified, copied, distributed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company’s prior written permission, except that the foregoing does not apply to User Content that is legally posted on the Site, which is addressed in more detail in the section below titled “Ownership of User Content.” Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your own personal use, in connection with participating on the Site, during the duration of the development of a Product Idea for which such Site Content was originally posted. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any use of the Site Content not explicitly permitted herein is strictly prohibited. In the case of your own User Content submitted to the site, you agree to keep such content confidential and not to publicly disseminate such User Content until such time as Quirky evaluates such content for any Intellectual Property Rights therein, and files for protection of such Intellectual Property Rights, if applicable, at Quirky’s sole discretion. The foregoing license is subject to these Terms of Service and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Service shall be construed as conferring any license to Intellectual Property Rights, whether by estoppel, implication or otherwise. The foregoing license is revocable at any time by the Company without notice and with or without cause.

PUT SIMPLY:

If you put an idea for a product on Quirky, or you view someone else’s idea on Quirky, don’t disclose that idea anywhere else. That would be a violation of these terms, and not fair to your fellow community members.

Ownership of User Content:

You understand and agree that by submitting a Product Idea and/or User Content to any area of the Site, you automatically grant (and you represent and warrant that you have the right to grant) to other Users:

a limited license to access and use your User Content for their own personal use, in connection with participating on the Site, during the duration of the evaluation and development of a submitted Product Idea for which such User Content was originally posted. Other than as expressly provided herein, no User shall acquire any license or ownership in other Users’ User Content, provided however that in the event a User withdraws a Product Idea from the Site in accordance with these Terms, and desires to adopt User Content provided by another User for use away from the Site, such Users may agree among themselves, separate and apart from these Terms, to terms governing use of such User Content.

PUT SIMPLY:

When you submit your idea on Quirky.com you are giving the right to Quirky community to contribute to your idea.

Further, you agree to grant to Company a royalty-free, worldwide, fully paid-up, perpetual, irrevocable, non-exclusive, sublicensable right and license to exercise the copyright, publicity, and database rights you have in your account information, including any data or other information generated by your account activity, in any media now known or not currently known, in accordance with our privacy policy as set forth below.

Assigning over your IP:

In addition, in consideration of: the services provided by Quirky on its Site, including, but not limited to, providing you with access to the Site and the software and Users therein; the services provided by Quirky to you, including but not limited to, any efforts made to design, develop, commercialize, any product, and/or to license or sell any Intellectual Property Rights associated with any Product Idea that you submit or contribute to the Site; the agreement by Quirky set forth herein to pay certain royalties to Users where appropriate; and any other services, resources, and/or expenditures made by Quirky in connection with any Intellectual Property and/or Product Idea and/or User Content submitted to the site;

to the extent that you submit to Quirky or post on the Site any Intellectual Property, and/or any Product Ideas and/or any User Content,

YOU HEREBY ASSIGN TO COMPANY all of your worldwide right, title and interest in such Intellectual Property, and/or User Content and/or Product Ideas, including without limitation all Intellectual Property Rights and any and all other exclusive rights to the same.

These rights to the Intellectual Property, and/or User Content and/or Product Ideas that are assigned herein include, but are not limited to: any and all rights to claim priority thereto; any and all rights to use, distribute, modify, commercialize, and legally protect the same; and any and all rights to design, develop, make, use, sell, offer for sale, export, and/or commercialize products and/or services incorporating the same. These rights assigned herein further include any and all exclusive rights to sue and recover for any and all infringements of such Intellectual Property Rights and any other exclusive rights to the Intellectual Property and/or User Content and/or Product Ideas, including any infringements which may have occurred prior to the date of this assignment, or which may occur on or thereafter.

PUT SIMPLY:

If you press submit on an idea, Quirky owns that idea. Please be super sure you want to hand over this IP before you press submit!

We take ownership because we work with hundreds of thousands of inventors and it would be impossible to negotiate individually on IP. Also, our T&C’s include an NDA, which acts as protection against someone coming on Quirky’s platform and stealing an idea they see on the platform.

You hereby represent and warrant that you have the right to assign the same, and covenant that no assignment, sale, agreement or encumbrance has been or will be made or entered into which would conflict with this assignment.

You further covenant that Quirky will, upon its request, be provided promptly with all pertinent facts and documents relating to said Intellectual Property Rights and any other exclusive rights, and any applications, patents, trademarks, copyrights, or other legal applications, registrations and/or protections relating to the same as may be known and accessible to you, and agree that you will testify as to the same in any interference, litigation or proceeding related thereto, and will promptly execute and deliver to Quirky or its legal representatives any and all other additional written confirmatory documents of this assignment or other instruments of transfer or Intellectual Property Rights perfection or legal documents relating thereto as may be reasonably requested by the Company, as well as any and all papers, instruments or affidavits required to apply for, obtain, maintain, issue and enforce any applications, patents, trademarks, copyrights, or other legal protections relating to the Intellectual Property rights and any other exclusive rights, and/or required to pursue any legal proceedings (whether judicial or administrative) or take any actions which may be necessary or desirable to obtain rights to, maintain or enforce said Intellectual Property Rights and any other exclusive rights, and any applications or registrations relating thereto.

PUT SIMPLY:

Once you submit your idea, you’re stating that you have the right to the idea and that it doesn’t belong to anyone else. 

You further agree that you will not make any claims against the Company or any third party who is assigned or licensed rights in such Intellectual Property and/or User Content and/or Product Ideas by the Company, based on any allegations that any activities by the Company or such third party infringe your (or anyone else’s) Intellectual Property Rights in such User Content. You further acknowledge and agree that in connection with any such assignment you reserve no rights whatsoever, and the Company shall have the right to enforce all Intellectual Property Rights in such User Content against you and/or third parties and any subsequent use by you and/or Third Parties of such User Content.

PUT SIMPLY:

After you press “submit,” you transfer all rights in your idea to Quirky.  So don’t press “submit” if you’re having second thoughts.

You further acknowledge and agree that any compensation that you might receive as a result of submitting such Intellectual Property and/or User Content and/or Product Ideas and its inclusion in a successfully commercialized Product Idea, may be inadequate or below fair market value, and you expressly agree to bear such risk in connection with submitting to Quirky or posting on the Site any Intellectual Property and/or User Content and/or Product Ideas. The provisions of this Section and this Agreement may be specifically enforced by either the Company or any third party who is assigned or licensed or granted rights in such User Content by the Company or by operation of law, including, but not limited to any successor, licensee, assigns and/or legal representatives of Quirky, and any such third party is intended to be a third party beneficiary of this provision.

PUT SIMPLY:

Our manufacturing partners and third party retailers will set the price of the Quirky products. You may not think the price is fair, but that’s the way the cookie crumbles and, thus, you must accept whatever amount you’re paid.

You further understand and agree that you have the right to consult with legal counsel of your choosing before you enter into this Agreement, and before submitting any Intellectual Property and/or Product Ideas and/or User Content to the Site.

You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your User Content hereunder, including without limitation, any rights or obligations you may or may not have concerning open source software; and, (ii) you are solely responsible for, and the Company will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Site, including without limitation any legal consequences relating to your or any other Person’s Intellectual Property Rights or Proprietary Information Quirky also has the right herein to retains ownership of User account data, regardless of any Intellectual Property Rights in User Content.

You agree that you do not own the account you use to access the Site, nor do you own any data Quirky stores on its servers (including without limitation any data representing or embodying any or all of your User Content). In addition, you do not have any rights of access to the Site, the Services or any rights to data stored by or on behalf of the Company, other than as determined by the Company at its sole discretion.

Confidentiality:

(a) You agree to regard and preserve as confidential, all Quirky Confidential Information, including, but not limited to, all Product Ideas and/or User Content which is on the Site, which is submitted to the Site, or which may be submitted to the Site, whether submitted by you or other Users or provided by Quirky personnel. You will treat all Confidential Information with the same degree of care that You treat your own confidential or proprietary information, but in no event less than using standards of reasonable care. In maintaining the confidentiality of Quirky Confidential Information hereunder, You agree that (i) you shall not, without first obtaining the written consent of Quirky, disclose or make available to any person, firm or enterprise, reproduce or transmit, or use for its own benefit or the benefit of others, any such Quirky Confidential Information, and (ii) you shall prevent disclosure to any competitor of Quirky (known to be such after reasonable inquiry). You shall not, without obtaining the prior written consent of Quirky, use Quirky Confidential Information for any purpose other than for use of the Site, discussions between You and Quirky, internal planning, joint collaboration between You and other registered Users of the site, and the provision of other services to Quirky.

(b) Notwithstanding anything to the contrary contained herein, in the event of a breach or threatened breach by You of the provisions of this Section, Quirky has no adequate remedy in money or damages and, accordingly, may seek injunctive relief, provided, however, that no specification in these Terms of Service of a specific legal or equitable remedy shall be construed as a waiver or prohibition against any other legal or equitable remedies in the event of a breach of a provision of these Terms of Service.

PUT SIMPLY:

These terms and conditions act as a non-disclosure agreement. You are not allowed to come on to Quirky.com, view invention ideas of others, and steal those invention ideas. In addition, once you have submitted an idea to Quirky, you are not allowed to disclose the idea to anyone outside of the Quirky community.  If you do any of the above, we have the right to take legal action against you.

Commercial Arrangements with Third Parties:

From time to time, Quirky may contract with third party companies that may develop, manufacture and/or sell products based on a Selected Product Idea, and/or may in the future sell part or all of its business to a third party company. You agree that this Agreement and/or such third party companies’ actions or inactions concerning your Product Ideas and other User Content do not create between you and any such third party company any type of contract (e.g., express, implied, or quasi-contractual), any type of relationship (e.g., a fiduciary or confidential relationship) or any type of duty or obligation (e.g., financial or equitable), and you hereby waive and agree to waive any and all claims you have or may have in the future against any such third party companies concerning your Intellectual Property Rights, Product Ideas, other User Content, and your use of the Site.

Trademarks:

“QUIRKY” and other Quirky product names, brands, graphics, logos, designs, page headers, button icons, scripts and service names used by Quirky to identify the Services, Site and/or other services and/or products owned by Quirky are registered trademarks, trademarks or trade dress (collectively, the “Marks”) of Quirky in the U.S. and/or other countries. The Marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or association or affiliation with Quirky and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

Conduct by Users; Prohibited Conduct:

You agree that you shall not: (i) take any action or upload, post, e-mail or otherwise transmit to or via the Site any User Content that infringes or violates any third party rights, including without limitation any Intellectual Property Rights, or that constitutes any other Person’s Proprietary Information; (ii) take any action, written or otherwise, which is intended, or would reasonably be expected, to harm the Company or Company Affiliates or its or their reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company; (iii) impersonate any Person without their consent, including, but not limited to, a Quirky employee, or falsely state or otherwise misrepresent your affiliation with any Person; (iv) take any action or upload, post, e-mail or otherwise transmit to or via the Site any User Content that violates any law or regulation; (v) take any action or upload, post, e-mail or otherwise transmit to or via the Site any User Content as determined by Quirky at its sole discretion that is illegal, harmful, threatening, violent, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (vi) take any actions or upload, post, e-mail or otherwise transmit to or via the Site any User Content that contains any viruses, Trojan horses, worms, spyware, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personally Identifiable Information; (vii) take any action or upload, post, email or otherwise transmit to or via the Site any User Content or Product Ideas or Proprietary Information that would violate any right or duty under any law or under contractual or fiduciary relationships (including, but not limited to, any inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (viii) upload, post, email or otherwise transmit to or via the Site any unsolicited or unauthorized advertising, or promotional materials, that are in the nature of “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation that the Company considers in its sole discretion to be of such nature; (ix) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (x) attempt to gain access to any other User’s account or password; or (xi) “stalk”, abuse or attempt to abuse, or otherwise harass another user; (xii) charge any third party for use of the Site or the Services; or (xiii) modify, adapt, reverse engineer, decompile or attempt to discover the source code of the Site or any of its algorithms that are utilized to allocate Influence. Any violation by you of the terms of the foregoing may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any accrued Influence and any amounts otherwise due to you from the Company, and you expressly waive all rights, claims, and/or causes of action against Quirky in connection with the same.

PUT SIMPLY:

Please no nudies, bots, or get rich quick schemes.

User Presentation of Quirky or Quirky Products:

Users may choose to produce a web application (including, without limitation, a website, blog, Facebook page, Twitter page, or similar) promoting or otherwise presenting Quirky or publicly available Quirky products.

Any such application must comply with the following guidelines:

Post the following notice clearly and conspicuously on each and every page within an application:

“This application is not affiliated with, endorsed by, or in any manner provided or controlled by Q Holdings. Q Holdings assumes no liability for the content of this application.”

If using any Quirky branding (including, without limitation, Quirky or Quirky product brand names or logos), do not distort or alter the brand appearance. For example, don’t change any spelling, don’t add or merge words, don’t alter color, font or dimensions.  Inform us of any use of Quirky branding.

If using any Quirky created imagery (still photos or videos), include the following attribution: “© Q Holdings LLC. All rights reserved.” adjacent to each instance of imagery.

Don’t claim any untrue association with Quirky. Quirky Users are not employees, consultants, contractors or agents of Quirky.

Don’t include the Quirky name or other Quirky brand name in a domain name (including, without limitation, Facebook page URL or Twitter page URL)

Don’t disclose any Quirky Confidential Information.

Resale of Products:

If you purchase a product through this Site, such purchase is expressly subject to your compliance with your agreement and commitment not to sell such product in new and unused condition at a price lower than the price then offered by Quirky at the Site at the time of your resale. Any violation by you of the foregoing condition may result in immediate and permanent suspension or cancellation of your account and the forfeiture of any accrued Influence and any amounts otherwise due to you from the Company. Quirky expressly reserves the right to impose additional conditions on product purchases, such as, without limitation, volume restrictions and additional retail distribution terms and conditions.

User Submitted Prototypes:

Unless otherwise stated in writing and signed by an authorized Quirky employee, we cannot and do not guarantee that any physical prototype provided by a User to Quirky will be returned or not damaged. Users provide physical prototypes to Quirky at their own risk, and Quirky does not represent or warrant the return or condition of prototypes, and disclaims any liability relating thereto.

Infringement Complaints:

We respect the intellectual property rights of others and we prohibit Users from uploading, posting or otherwise transmitting on the Site or via the Services any materials that violate another party’s Intellectual Property Rights or that constitutes another Person’s Proprietary Information. Any infringing materials posted by any User can be identified and removed pursuant to Quirky’s Digital Millennium Copyright Act (the “DMCA”) compliance process, provided herein, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.

If you believe that any Site Content infringes a copyright, please send a notice of copyright infringement containing the following information to dmca@quirky.com:

Identification of copyrighted material allegedly being infringed, including an attached file containing the copyrighted material; Identification of the Site Content claimed to be infringing including the specific location within the Site of the allegedly infringing Site Content; Your contact information, including address, telephone number and e-mail address, and an indication whether you are the copyright owner, or, if you are not the owner of the copyright that has been allegedly infringed, an explanation of your relationship to the copyright owner; A statement that you have a good faith belief that the allegedly infringing Site Content is not authorized by the copyright owner, its agent, or the law, and that under penalty of perjury, the information provided is accurate, and you are authorized to make the complaint on behalf of the copyright owner; and Your signature.

Quirky will, upon receiving your notice of copyright infringement, if that notice complies with the foregoing five requirements, take one or more of the following actions: (a) reasonably determine that the allegedly infringing Site Content is not infringing, and allow the Site Content to remain, (b) contact the Person who posted the allegedly infringing Site Content concerning your notice of infringement, and/or (c) remove the allegedly infringing Site Content. By your use of this Site, you expressly agree to and accept the foregoing DMCA compliance process, acknowledge its compliance with U.S. Copyright law, and waive any and all claims against Quirky directly relating to, or arising from, the foregoing DMCA compliance process.

Repeat Infringer Policy:

In accordance with the DMCA and other applicable law, Quirky has adopted a policy of terminating, in appropriate circumstances and at Quirky’s sole discretion, Users who are deemed to be repeat infringers. Quirky may also at its sole discretion limit access to the Site and/or terminate the accounts of any Users who infringe any Intellectual Property Rights, or who disclose Quirky Confidential Information and/or Proprietary Information of others, whether or not there is any repeat infringement or disclosure. Any amounts that may otherwise be or may become due from the Company to any User, who has submitted User Content that infringes any Intellectual Property Rights or discloses Quirky Confidential Information and/or Proprietary Information of any other Person is subject to forfeiture, at the sole discretion of the Company.

Monitoring User Content:

Quirky is not responsible or liable in any manner for any User Content posted on the Site or in connection with the Services. Although we provide rules for User conduct and postings and reserve the rights set forth in this Agreement, we are not responsible for what Users post, transmit or share on the Site and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable Site Content you may encounter on the Site or in connection with any User Content. The Company is not responsible for the conduct, whether online or offline, of any User of the Site or Services.

Disputes Between Users:

As a condition of access to the Site and the Services, you release Quirky (and Quirky’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute you have or claim to have with one or more Users of the Site; including, without limitation, any claim that another User infringes upon your Intellectual Property Rights in any User Content that you may provide. You further understand and agree that: (a) Quirky will have the right but not the obligation to resolve disputes between Users relating to the Services, and Quirky’s resolution of any particular dispute does not create an obligation to resolve any other dispute; (b) to the extent Quirky elects to resolve such disputes, it will do so in good faith based solely on the general rules and standards of the Services and will not make judgments regarding legal issues or claims; (c) Quirky’s resolution of such disputes will be final with respect to the Site, and any allocation of Influence or the allocation of any payments due to Users related to the foregoing, but will have no bearing on any real-world legal disputes in which Users of the Services may become involved; and (d) you hereby release Quirky (and Quirky’s shareholders, affiliates, directors, officers, subsidiaries, employees, and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Quirky’s resolution of disputes relating to the Site or the Services.

PUT SIMPLY:

Please remember the golden rule and treat others as you would like to be treated yourself. We have the right to remove your from Quirky if you misbehave.

All Data on the Company’s Servers is subject to Deletion, Alteration or Transfer

When using the Site or the Services, you may accumulate Site Content, Influence, objects, items, scripts, or other value or status indicators that reside as data on the Company’s servers. THIS DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON QUIRKY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN QUIRKY’S SOLE DISCRETION. Notwithstanding the foregoing, the Company will maintain back-up records related to any actual accumulated unpaid cash amounts earned by Users, and to the extent such information is deleted or otherwise altered, the Company will use its best efforts to accurately recreate such information to satisfy its payment obligations.

YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE WITH RESPECT TO USER CONTENT YOU POST ON THE SITE, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH USER CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, QUIRKY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE USER CONTENT OR SITE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE COMPANY’S SERVERS.

YOU UNDERSTAND AND AGREE THAT QUIRKY HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY SITE CONTENT (INCLUDING YOUR USER CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITHOUT ANY LIABILITY OF ANY KIND.

All Services are Provided “as is” Without Express or Implied Warranties

QUIRKY PROVIDES THE SITE, THE SERVICES, YOUR ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN “AS IS” BASIS, PROVIDED AND ACCEPTED AT YOUR OWN RISK, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Without limiting the foregoing, the Company does not warrant or guarantee that it can ensure continuous, error-free, secure or virus-free operation of the Services, the Site or your account, and you understand that you shall not be entitled to make any claim based on Quirky’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you.

All Services Provided and Sales Made on “as is”, no refund basis

THERE WILL BE NO REFUNDS FOR ANY REASON UNLESS OTHERWISE STATED BY THE COMPANY IN WRITING ON THIS SITE. ALL SALES MADE BY THE COMPANY ARE FINAL, MADE WITHOUT ANY GUARANTEE, STRICTLY ON AN “AS IS” BASIS, AND PROVIDED AND ACCEPTED AT YOUR OWN RISK. QUIRKY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BY MAKING A PURCHASE WITH THE COMPANY, YOU HAVE READ AND UNDERSTAND OUR NO REFUNDS POLICY.

Quirky’s liability to you is expressly limited, to the extent allowable under applicable law

IN NO EVENT SHALL QUIRKY OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICES OR THE SITE (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), YOUR ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT THE COMPANY MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL QUIRKY’S CUMULATIVE LIABILITY TO YOU FOR DAMAGES OF ANY KIND OR NATURE EXCEED ONE HUNDRED DOLLARS (U.S. $100.00).

Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to you. You agree that Quirky shall not be held responsible or liable for anything that occurs or results from accessing the Site or participating in the Services.

Indemnification:

You hereby agree to defend, indemnify and hold harmless Quirky, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, distributors, successors and assigns and other Users of the Services, from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any breach of this Agreement by you, or from your use of the Services. You agree to defend, indemnify and hold harmless the Company, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, licensees, and distributors, successors and assigns from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any claims by third parties that your activity on the Site or your User Content (including your User Content as incorporated in a commercialized Product Idea) infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information.

Right of Set-Off:

If you breach any representation, warranty, covenant, or obligation of these Terms of Service, including, but not limited to, the Prohibited Conduct provisions and your obligation of Confidentiality, or if Quirky in good faith and in its commercially reasonable judgment believes that you have breached any representation, warranty, covenant or obligation of these Terms of Service, then Quirky’s obligation to make any payments that may be owed at the time of breach or thereafter shall terminate, and Quirky’s obligations under these Terms of Service shall terminate, but your obligations shall remain in full force and effect.

Privacy Policy:

Quirky complies with the U.S. – EU Safe Harbor framework and the U.S. – Swiss Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of personal data from European Union member countries and Switzerland. Quirky has certified that it adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access and enforcement. To learn more about the Safe Harbor program and to view Quirky’s certification, please visit http://www.export.gov/safeharbor/.

If you have any complaints regarding our compliance with the Safe Harbor you should first contact us at legalnotice@quirky.com. If contacting us does not resolve your complaint, you may raise your complaint with TRUSTe at https://feedback-form.truste.com/watchdog/request, fax to 415-520-3420, or mail to TRUSTe Safe Harbor Compliance Dept. at the relevant address listed at http://www.truste.com/about-TRUSTe/contact-us. If you are faxing or mailing TRUSTe to lodge a complaint, you must include the following information: the name of Company, the alleged privacy violation, your contact information, and whether you would like the particulars of your complaint shared with the Company. For information about TRUSTe or the operation of TRUSTe’s dispute resolution process, point your Internet bowser to https://feedback-form.truste.com/watchdog/request, or request this information from TRUSTe at any of the addresses listed at http://www.truste.com/about-TRUSTe/contact-us. The TRUSTe dispute resolution process shall be conducted in English. For human resources data we have agreed to cooperate with national data protection authorities, a list of which can be found at http://ec.europa.eu/justice/data-protection/bodies/authorities/index_en.htm.

Collection and Uses of Your Personal Information

You acknowledge and agree that Quirky, in its sole discretion, may track, record, observe or follow any and all of your interactions within the Services. Except as otherwise provided herein, including without limitation, in the Section “Media Waiver”, the Personally Identifiable Information you provide to us is used for the Company’s internal purposes only. Quirky uses the information it collects to learn what you like and to improve the Services.

Depending on what Services you use on the Site, Quirky may request Personally Identifiable Information from you, including but not limited to your full name, a valid email address and username and/or password, billing address, credit card information, proof of identification and physical mailing address.

You are required to provide a valid email address during User registration that will represent your identity on the Site as well as your full legal name, and postal address, including, city, state and country of residence, and your country of citizenship (e.g. for potential use in filing patent applications). You may opt to provide that your full name, gender, birthday, location and/or other personal information be publicly displayed in connection with your account and activity on the Site. While we’d prefer that all Users use their real names, Quirky offers an alias option for those who’d prefer more anonymity.

Your chosen name is publicly displayed and connected to your Site activity. Other information visitors to the Site may see includes, without limitation, your date joined, profile information, feedback, total earnings to date, Product Ideas submitted, Product Ideas influenced.

Some Users may connect to or register a Quirky account using an external third-party application, such as Facebook. Quirky may receive some data from those connected third-party applications. Connecting your Quirky account to third-party applications or services is optional, and when you connect your account to an external application, you will be given the opportunity to grant permission. You can revoke your permission under your Quirky account settings.

You agree that Quirky may communicate with you via email and any similar technology for any purpose relating to the Site.

Controlling and Accessing Your Personal Information:

Content in a User profile on the Site is available to other registered Users of the Site. Site visitors may be able to identify you, or associate you with your User account if you include Personally Identifiable Information in your profile. The messages you send or receive using the Site are only private to the extent that you and the sender/recipient keep them private. Quirky does not have any control over whether a recipient of one of your personal messages publicly posts it or its contents.

You can access and update your personal information and communication settings by selecting the “Edit Your Profile” option on your account dashboard. You may also terminate your account at any time by emailing Quirky at questions@quirky.com.

Sharing Your Personal Information:

Quirky will not give any of your Personally Identifiable Information to any third party or otherwise disclose your Personally Identifiable Information without your express approval except: as reasonably necessary to fulfill your service request or purchase order, to third-party fulfillment houses, customer support, billing and credit verification services, and the like; to learn what you like and to improve the Services; to communicate with you regarding the Services and the Company’s business; to comply with tax and other applicable law; as otherwise expressly permitted by this Agreement or as otherwise authorized by you; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; in connection with a merger, sale, reorganization, dissolution or liquidation of Quirky businesses, to prospective or actual acquirers of Quirky assets; to legal counsel; or as otherwise necessary to protect the Company, its agents and other users of the Services. Quirky can (and you authorize Quirky to) disclose any information about you to private entities, law enforcement agencies or government officials, as Quirky, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. The Company may share general, demographic, or aggregated information with third parties about its Users and their User Content and Site usage, but that information will not include or be linked to any Personally Identifiable Information without your consent.

PUT SIMPLY:

We NEVER sell or give out any of our user information. We hate spam too.

Security of Your Personal Information:

Quirky follows generally accepted industry standards for the protection of the Personally Identifiable Information that you submit, both during transmission and after receipt. However, no method of transmission over the Internet or via mobile device, or method of electronic storage, is 100% secure. Therefore, although we strive to use commercially acceptable means to protect your Personally Identifiable Information, we do not guarantee the security of any of your private transmissions against unauthorized or unlawful interception or access by third parties.

Retention of Your Personal Information:

We may keep the information that we obtain from or about you as long as is permitted or required under the law, and use as authorized under this Privacy Policy. If your account is deleted, we will remove your profile from the Site, but may retain your information as necessary for our future use as authorized under this Privacy Policy. If your account is terminated, we will terminate your access to your account, but reserve the right to not remove your profile from the Site, and may retain your information as necessary for our future use as authorized under this Privacy Policy. We may use retained data to prevent, investigate, or identify possible wrongdoing in connection with the Site or to comply with legal obligations. Information may exist in backup storage even after it has been removed from our active databases. If you are located in the European Union or other regions with laws governing data collection and use that differ from United States law, please note that we may transfer information, including Personally Identifiable Information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction. By using the Site and/or Services you consent to the transfer of information to the United States or to any country in which Quirky maintains facilities and the use and disclosure of information about you as described in this Agreement.

Cookies:

Quirky uses a browser feature known as a “cookie,” which is a small text file number that is stored on your hard drive when you begin to navigate the Site. The cookies used by the Site do not contain any Personally Identifiable Information about you, but they may identify your specific computer. If you would like to disable cookies from Quirky, please use the help function in your web browser to restrict cookies from the Site. If you block cookies from Quirky, you may not be able to use certain functions or features of the Site.

Quirky may also use cookies to track activity and click-through behavior to better understand Users’ preferences and browsing habits, and to provide a more personalized experience while visiting the Site, and for more personalized e-mail alerts.

Quirky uses third-party advertising services to serve Quirky ads when you visit the Site and sites upon which we advertise (often referred to as “online network advertising”). This advertising technology uses information about your visits to this Site and the sites upon which we advertise (not including your Personally Identifiable Information) to serve Quirky ads to you. In the course of serving Quirky advertisements to you, a unique third-party cookie may be placed or recognized on your browser.

As of the Effective Date of Last Revision of these Terms of Service, you may manage and opt out of third-party cookie-based advertising by visiting http://www.networkadvertising.org/choices/. Quirky is not affiliated with, and does not control, the foregoing website, so does not represent or warrant its performance or availability to Users.

Linked Websites, Services:

The Site may contain links to websites other than the Site, and redirection or pass-through to, or integration of, services other than the Services. Except as set forth herein, Quirky does not share your Personally Identifiable Information with these websites and services, nor is Quirky responsible for the privacy practices of these websites and services. Quirky makes no representations or warranties concerning such websites and services, nor shall Quirky have any liability concerning such websites and services.

Blog, Forums, Chat Rooms and Participate Pages:

The blog, forums, chat rooms and participate pages of the Site are public. The information that you provide in such portions of the Site is publicly available to others, and can be read, collected and/or used by others, potentially outside the Site. Finally, the opinions expressed by each blog, forum, chat room or participate page participant (who is not an employee of Quirky) is his/her own and do not represent the views of Quirky.

Children’s Privacy:

Quirky does not knowingly collect Personally Identifiable Information from children under the age of 18 (minors) without the verifiable consent of a parent or guardian. If Quirky learns that it has collected Personally Identifiable Information of a child under the age of 18 without parental or guardian consent, we will delete that data from our systems and terminate the child’s account. If you become aware that a child has provided Quirky with Personally Identifiable Information without parental or guardian consent, please contact Quirky at legalnotice@quirky.com.

PUT SIMPLY:

If you’re under 18 or have a child under 18 who wants to use quirky, please send an email to questions@quirky.com.

Contact Quirky:

If you have questions, suggestions or concerns related to this Privacy Policy, you may contact Quirky at legalnotice@quirky.com.

Updates to This Privacy Policy:

Quirky may change, modify, add, or delete portions of this Privacy Policy at any time pursuant to the process disclosed above for changes to this Agreement.

Dispute Resolution; Governing Law; Venue and Jurisdiction:

By visiting or using the Site and/or the Services, you agree that the laws of the State of New York, without regard to principles of conflict of laws, will govern these Terms of Service and any dispute of any sort that might arise between you and the Company or any of our affiliates. YOU AND THE COMPANY AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT, THE SITE AND/OR THE SERVICES (INCLUDING YOUR VISIT TO OR USE OF THE SITE AND/OR THE SERVICES) SHALL BE FINAL AND BINDING ARBITRATION conducted in New York County, New York, except that Quirky may seek injunctive relief in state or federal court located in New York County, New York concerning violation by a User of any of the User conduct rules set forth above, and in such case, the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought. You agree to submit to the jurisdiction of such arbitration tribunal and/or court, as applicable, and waive any objection to personal jurisdiction otherwise available. You also agree to accept any complaints, notices, and/or other legal documents initiating or relating to such arbitration and/or litigation at the email address and/or at the postal address provided as part of your Registration Data, and waive any objections to service of process by those means that may otherwise be legally available. You also fully agree that any award issued by such arbitration tribunal and/or court against you shall be enforceable in the federal and/or state courts of New York County, New York, and of your place of residence, whether in the United States or a foreign country.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes ( the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, YOU AND QUIRKY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THAT NO ARBITRATION OR CLAIM UNDER THESE TERMS OF USE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES. In no event shall any claim, action or proceeding by you related in any way to the Site and/or the Services (including your visit to or use of the Site and/or the Services) be instituted more than three (3) years after the cause of action arose[G24] , with such three (3) year limitations period being an absolute bar, and not subject to tolling or extension for any reason.

General Provisions:

The Site and the Services is controlled and operated by Quirky from its offices within the United States of America. The Company makes no representation that any aspect of the Services is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the Services, whether from the U.S. or from other locations are responsible for compliance with all applicable local laws, including, but not limited to, any city, state, federal, U.S. and/or foreign laws. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Services and its use.

The Company’s failure to act with respect to a breach by you or others does not waive Quirky’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Quirky under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of the Company. All or any of Quirky’s rights and obligations under this Agreement may be assigned to any successor, legal representative, transferee or assignee of Quirky’s choosing, including, but not limited to any subsequent owner or operator of the Site and/or the Services in as a result of a merger, acquisition or sale of all or substantially all of the Company’s assets. You may not assign or transfer this Agreement or any or all of your rights or obligations hereunder without the prior written consent of the Company, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Quirky shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Quirky.

The “PUT SIMPLY” paragraphs are provided for convenience only and are not to be considered to limit the scope of this Agreement.

This Agreement sets forth the entire understanding and agreement between you and Quirky with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.

Quirky may give notice to you by means of a general notice on the Site, and may provide legal notices and/or service of process to you by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under this Agreement from you to Quirky, not including service of process, shall be mailed to us at legalnotice@quirky.com unless otherwise provided in this Agreement; provided, however, that a copy of any legal papers served on Quirky must also be emailed to us at legalnotice@quirky.com in addition to service of process by such means provided under New York law.