To Be

Terms of Use

Last Updated Date: August 2013

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. BY ACCESSING OR USING TO BE (to.be) OR ANY OTHER WEBSITES OF PARTICLE INC., ITS AFFILIATES OR AGENTS (“COMPANY” OR “WE”) WITH LINKS TO THIS TERMS OF USE (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”) BY THE COMPANY OR USERS OF THE SITE (“USERS”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN YOU REGISTERED ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES

THE TERMS OF USE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.”

Company knows that your privacy is important. For this reason, we have created a privacy policy that describes our collection, use and disclosure practices regarding any personal information that you provide to us. The security of your personal information is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Website is invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. We reserve the right to cooperate with local, state, provincial and national authorities in investigations of improper or unlawful activities and this may require the disclosure of your personal information.

The Services consist of the following, without limitation: to.be provides you with spaces (which we call "fields"), each of them located on a single URL, where you will be able to drop any form of media content and original work through a number of paint tools and other creative tools. 

PLEASE NOTE THAT The Terms are subject to change by THE Company in its sole discretion at any time.  When changes are made, the Company will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website.  We will also update the “Last Updated” date at the top of the Terms of Use.  If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms.  Any changes to the Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have a registered account on the Website upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 below).  The Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services.  Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s)  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS. 

Commercial Activities.  You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):

Unauthorized Use or Access. You agree that you will not, under any circumstances:

General.  In connection with your use of the Company Properties, you shall not:

As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND THE COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY VENDOR PROVIDING PRODUCT SERVICES OR OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. COMPANY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES, INCLUDING PRODUCTS, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  COMPANY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE COMPANY PROPERTIES

No Liability for Conduct of Other Users.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE COMPANY PROPERTIES, INCLUDING ANY PURCHASE OF PRODUCTS THEREFROM. YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE COMPANY PROPERTIES. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE COMPANY PROPERTIES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE COMPANY PROPERTIES.  YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE COMPANY PROPERTIES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.  YOU ACKNOWLEDGE AND AGREE THAT COMPANY DOES NOT CONDUCT BACKGROUND CHECKS ON ANY USER.

Violations.  If the Company becomes aware of any possible violations by you of the Terms, the Company reserves the right to investigate such violations.  If, as a result of the investigation, the Company believes that criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  The Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Company Properties, including Your Content, in the Company’s possession in connection with your use of the Company Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of the Company, its Users or the public, and all enforcement or other government officials, as the Company in its sole discretion believes to be necessary or appropriate.

Breach.  In the event that the Company determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Company Properties, the Company reserves the right to:

No Subsequent Registration.  If your registration(s) with or ability to access the Company Properties, or any other Company community is discontinued by the Company due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, the Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

Electronic Communications.  The communications between you and the Company use electronic means, whether you visit the Company Properties or send the Company e-mails, or whether the Company posts notices on the Company Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from the Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

Release.  You hereby release the Company Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Company Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Company Properties, and your sale, design, purchase and/or use of any Products. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.

Assignment.  The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Force Majeure.  The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

Compliance.  If you believe that the Company has not adhered to the Terms, please contact the Company by emailing us at [email protected]  We will do our best to address your concerns.  If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.

Limitations Period. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE COMPANY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Dispute Resolution. 

SUPPLEMENTAL TERMS FOR PRODUCTS

These Supplemental Terms for Products (the “Product Terms”) are intended to supplement To Be website’s terms of use (“Terms of Use”) and be incorporated therein to constitute a binding, contractual agreement between Particle, Inc. (“Particle”, “Company” or “we”) on the one hand, and you. To the extent that there is any conflict between these Product Terms and the Terms of Use, the provision(s) in these Product Terms will prevail, but solely to the extent such conflict exists.

By “Product”, we simply mean a physical product containing a print of a field (whether in whole or in part) that is displayed on the Website or Service. When you use Company’s services to: (i) purchase a Product from a field you created or uploaded (“Self-Purchase”); (ii) obtain access to a Particle partner’s library and then design a new field using such library to create and purchase a Product (“Sponsored Purchase”); (iii) facilitate the sale of your field to a third party as a Product; and/or (iv) purchase such Product through the Website or Services from a third party, you hereby agree to these Product Terms and agree and acknowledge that such Product Terms will govern your use of our services for facilitating payment for, manufacturing, buying and selling Products (“Product Services”)

  1. ORDERS. These Product Terms shall govern any order you make through the Website for Products, whether as a Self-Purchase, a Sponsored Purchase or a purchase from another user (such order, an “Order”).

    1.1 Our Role. As we do not review User Content, we are not responsible for reviewing the User Content for Products. We have no responsibility for any Content on Products for which we are not the seller.

    1.2 Shipment.. When you place an Order, we will confirm your address by sending an email to the email address you have provided and/or calling you to verify your Order. All Products shall be deemed accepted by you upon shipment, and title to, and risk of loss of, the Products passes to you when Company or its vendor provides the Product(s) to a common carrier. Any estimated shipping date provided by Company is based on processing time, and does not include transit time.

    1.3 Payment. To pay for an Order, you will need to provide Company with the information necessary to process an Order from you, including your shipping address and the billing information requested on the Website to pay for such Order. You may pay for your Order via credit card or any other manner then available on the Website. By submitting your payment information to us, you authorize us (acting on behalf of the Product seller) to charge the applicable payment method at our convenience but within thirty (30) days of credit card authorization. You represent that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because Orders require a valid credit card, only persons age 18 or over are placing Orders, and providing us with the information requested during the Order process. We shall not be liable in the event your children or others acting with or without your permission use your credit card or other means of payment to make purchases on the Website (and to the extent your minor children make any such purchases, you hereby represent and warrant that they are authorized to do so); however you may report any unauthorized use to us, and we will use reasonable measures within our control to help prevent future unauthorized use of your card.

    1.4 Product Display. We make efforts to display User Content and Products and their colors as accurately as possible. Having said that, the displayed colors of the User Content and Products will depend upon your monitor and we cannot guarantee that your monitor will accurately portray the actual colors of the Products.

    1.5 Promotional Offers. We may run promotional offers from time to time on the Website. The terms of any such promotion will be posted on the Website. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point.

    1.6 Returns. As each Product is customized for you, we do not allow you to return Products that are not defective or damaged. Please contact us if your Product is defective or damages or you are otherwise unhappy.

  2. Self-Purchase. The following provisions shall apply only for a Self-Purchase.

    2.1 Our Role. When you order a Product containing your User Content, you authorize us to use such User Content to carry out our Product Services to sell Products to you.

    2.2 Pricing. Prices for the creation of Products are subject to change. You pay a fixed fee for a Product, a portion of which is retained by us to compensate us for the Product Services. Despite our best efforts, a small number of the items on our Website may be mispriced. We are not responsible for typographical errors regarding price or any other matter. All prices do not include shipping and handling or sales taxes, if applicable, which will be added to your total purchase price. You are responsible for the payment of any shipping and handling charges.

  3. Selling to Other Users. The following provisions shall apply only to a sale of Products containing a field of yours to other Users (except during a takeover, in which case Section 4 will apply).

    3.1 Our Role. You will have the right to select any field that you wish to authorize for inclusion on Products for sale to other Users. In the event you elect to sell a field as a Product, we will act as an independent contractor on your behalf to provide the Product Services. You are the seller of all Products to third parties, and you hereby request us to facilitate the manufacture and shipment of orders for your Products. We make no representation that we will not be able to procure an Order or any revenue for you for your Products, nor that you will obtain any benefit by entering into these Product Terms. You acknowledge and agree that we may offer similar or competitive Products on the Website.

    3.2 Pricing. You will determine the price for your Products. We will establish a minimum fee to cover the cost of actually making the Product. If you wish to sell your Product for less than our minimum fee, we will require you to pay us the difference. If you wish to sell your Product for more, you and we will equally split the overage. You are responsible for all taxes associated with your sales.   We will collect and remit any applicable state and local sales taxes that may apply to your Order. Please see our fee schedule.

    3.3 Remixing. Notwithstanding Section 3.2, in the event your field contains a copy of a field shared and provided by another User, such other User will be entitled to receive the same fees from your Products as such User would have received for any of his or her Products containing such field. For example, if User A set a price of sixty dollars ($60.00) per Product of his field and User B wishes to “remix” that field in a Product, User B must charge at least sixty dollars ($60.00) and User A will be entitled to all proceeds from User B’s Product that arises from the first sixty dollars ($60.00) of the price of User B’s Products. User A will not be entitled to any revenue share for User B’s Product to the extent such price is set above that amount. This section 3.3 will not apply to more than one User (i.e., only the User who provided the field used will be compensated, and not all Users who contributed to such User’s field).

    3.4 Risk of Loss. All Products are manufactured and delivered pursuant to arrangements with third party suppliers under your instructions. This means that title and risk for loss for such items pass from you to the purchaser without passing through us. As between you and us, you are fully responsible for the Products sold to such Users and any liability or responsibility arising therefrom, except to the extent resulting from our gross negligence.

    3.5 Payment. We collect payment for Products on your behalf and you authorize such collection. We will pay you within thirty (30) days after the end of each quarter during the Agreement, provided that we may change the applicable payment dates as long as we notify you thereof and pay you at least once every quarter. All payments will be in U.S. dollars. At the time we send you a payment, we will provide you with our standard reports concurrently. Notwithstanding the foregoing, no check will be issued (and no payment made) for any amount less than fifty dollars (U.S. $50.00). All unpaid earnings will rollover to the next pay period. Any account that goes unpaid for eighteen (18) months will be subject to immediate payoff, upon which event either you or we may immediately terminate this Agreement upon written notice. Please confirm we have the correct information for remitting payment to you. We are not responsible for any inaccuracies.

    3.6 Taxes. You will be responsible for including in the Product price all applicable taxes. You are solely responsible for remitting all applicable taxes related to the sale of Products. All amounts payable to you under this Agreement shall be inclusive of all taxes payable to any taxing authority by virtue of the transactions contemplated under this Agreement (other than taxes based upon your income). We recommend that you consult with your tax advisor as to the application of taxes for you, as the seller of the Product. We reserve the right to collect sales tax on your behalf.

  4. SPONSORED PURCHASE. In certain cases, a partner of ours will provide the Content for you to create a field as part of what we call a “takeover”. Such Content will be part of a library and we do not provide, nor are we responsible for, such library. You can then use our Service to create a design and then you can purchase such design on a Product. When you create a design, we may also make this design available to other users for purchase as a Product. As such design was created using our partner’s content, and not Your Content, Section 3 will not apply even though you have created the design. You will not be entitled to any revenue arising from other Users’ purchase of such Products, although you may receive ratings and other reputational benefits for your profile on the Service resulting from such designs. Any Content provided by our partner will not be User Content, but your creative works will be User Content. You may order Products containing your created designs or created designs of other Users. No rights are granted to you in our Partner’s Content. We are the seller of record for a Sponsored Purchase.