Terms of Service

Effective Date: September 2023

Acceptance of Terms

These Terms of Service (this “Agreement”) between Creative Kaiju Corp. (“we”, “us” or “Creative Kaiju”) and you govern your access and use of our graphic design platform made available through creativekaiju.com (this “Site”) and the subscription or other services we provide (the “Services”). By using this Site and accessing our Services in any manner, you acknowledge that you have read, understood, and agree to be bound by this Agreement.

By signing up as a client of Creative Kaiju Corp. or using the creativekaiju.com website, you agree to be legally bound by these conditions. Please read these terms of services carefully. Creative Kaiju Corp. may change these terms at any time by updating this page. You should visit this page periodically to review these conditions, as they are binding to you. If you do not agree with ALL of these terms, then you are expressly prohibited from using the site and must discontinue use immediately.

We may update this Agreement from time to time. By continuing to use this Site and the Services after the update, you accept the update in its entirety. All updates are effective upon posting. We encourage you to check the “Terms of Service” link on the home page each time you visit this Site, so you are aware of any updates.

Privacy Policy

Our privacy policy, which can be found at https://creativekaiju.com/privacy-policy/ (the “Privacy Policy”), describes how we may use your personal information. By continuing to use this Site, you accept the Privacy Policy, which is incorporated herein by reference. If you object to your personal information being used as described in the Privacy Policy, please leave this Site immediately. You must be at least 18 years of age to access this Site.

Intellectual Property Rights

Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. No materials may be copied, distributed, republished, downloaded, reproduced, shared, posted, or transmitted in any method unless fully authorized by an authorized Creative Kaiju Corp. representative.

Creative Kaiju Corp. may grant permission to your organization to use materials on this Site at its discretion. Materials given permission to use may not be modified in any way, be used for commercial purposes, be decompiled or reverse engineered, remove copyright/proprietary notations, or transferred to another person to “mirror” or “duplicate” on any other server.

Trial, Fees and Refunds

It is the sole responsibility of those who sign up for a trial to cancel the service within the trial period if they are not satisfied with the service, have not used the service within the trial period, or do not intend to use the service beyond the trial.

It is the sole responsibility of those who sign up for a Creative Kaiju subscription to cancel the service, ahead of their billing date, if they do not intend to use the service during a subscription period. Refunds will not be granted due to inactivity by a Creative Kaiju client, or if a Creative Kaiju client has forgotten to cancel their subscription prior to their billing date.Once a subscription payment has been processed, the service will be delivered until the final date of the subscription period.

Use of our Services requires payment of recurring fees. Before we have any obligation to provide Services, you must pay the fees (as well as any applicable taxes) in full, in such amounts and for such billing frequency as specified during registration, as updated (prospectively, not retroactively) by you from time to time. You agree that, upon registering for the Services, you authorize us to charge your method of payment (e.g., credit card) for the fees and applicable taxes from your registration date based upon your chosen billing frequency (e.g., monthly, quarterly, annually). You represent and warrant to Creative Kaiju Corp. that such billing information is accurate, up to date, and that you’re authorized to make the payment. Overdue charges will accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. We reserve the right to terminate your account in the event of non-payment of amounts owed to us. All amounts owed under this Agreement are non-cancelable and non-refundable, except as outlined below.

You may cancel our services anytime either by contacting hello@creativekaiju.com or by speaking to a Creative Kaiju Team Member. Upon cancellation, you will continue to have access to the Services and your design files through the end of your current paid billing term. Once the billing term has ended after cancelation, you will no longer have access to the Services and may lose access to your design files through the Site.

You may ask for a refund within the first 14 days of your service, for any reason. After this 14 day window, we will not issue a refund. All refunds are subject to a 5% administrative fee. Creative Kaiju reserves the right to refuse a refund request at our sole discretion for any reason, not limited to but including: fraud, refund abuse, other manipulative behaviour, unreasonable behaviour and/or expectations. Promotions, upgrades, and adjustments to existing plans are non-refundable. Refund requests will not be approved for more than one monthly payment.

Refund requests must be sent to hello@creativekaiju.com and need to include the grounds on which a refund is being requested.

Your eligibility for refund is nulled if…
You APPROVE of any project, or consider any project COMPLETE
You are past the 14-day refund policy
You request or download source files.

User Representation and Registration
By using the Site, you represent and warrant that:
– All registration information you submit will be true, accurate, current, and complete.
– You will maintain the accuracy of such information and promptly update such registration information as necessary.
– You have the legal capacity and you agree to comply with these Terms of Use.
– You are not a minor in the jurisdiction in which you reside.
– You will not access the Site through automated or non-human means, whether through a bot, script, or otherwise.
– You will not use the Site for any illegal or unauthorized purposes.
– You agree to keep your password confidential and will be responsible for all use of your account and password.
– If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof). We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.

The Services

Subject to your compliance with this Agreement, as well as your subscription for an applicable plan and our timely receipt of your associated payment(s), we will make the applicable Services available to you during the term to which you have subscribed. We will use commercially reasonable efforts to make the Services available subject to planned downtime and any unscheduled emergency maintenance. We may modify, replace, or discontinue the Services at any time, for any reason, without notice to you.

You may only access and use the Services in accordance with the terms of the Agreement. You agree to: (i) provide accurate, current and complete information about you as may be prompted by any form on this Site (“Registration Data”); (ii) maintain and promptly update the Registration Data, to keep it accurate, current and complete; (iii) maintain the security of any password and identification information; (iv) notify us immediately of any unauthorized use of your account; (v) accept sole responsibility for any and all activities that occur on your account. Each person who uses any Services must have a separate username and password. You must provide a valid email address for each person that you authorize to use your account. You agree to provide any other information that we reasonably request.

You are responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the Services and for paying all charges related thereto.

We may terminate your account without prior notice or liability to you, if we find, in our sole and exclusive discretion, that you: (i) have violated this Agreement; (ii) are not in alignment with our model; (iii) are sharing usernames or passwords; (iv) violate our core values; or (v) are abusing our services or team in any way, including using our services for illegal purpose.

“Licensed Content” means content that we own or license, including artwork, stock photographs, audio, typeface, video, designs, and writings. While you are, and will be, the sole and exclusive owner of all right, title, and interest in and to your graphic design project, the Licensed Content incorporated in your graphic design project is subject to the license described in Section 4 below. No rights are granted to you other than as expressly set forth herein. You grant us a perpetual, irrevocable, worldwide, nonexclusive, transferable, sublicensable right and license to commercially exploit in any manner any feedback, suggestions or recommendations that you provide to us.

Subject to your continued compliance with this Agreement, including timely payment of associated amounts due, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services for your internal business purposes. You may not access or use the Services in order to monitor its availability, performance, or functionality for competitive purposes. You may not, and may not permit any third party to: (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of the Services, (b) modify, translate or create derivative works based on the Services, (c) use the Services for any purpose other than its own internal purposes; or (d) use the Services other than in accordance with the Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy and intellectual property laws).

Use of the Services

You may use the Services for any number of projects and scope that you have that you have subscribed for under the applicable plan and as are appropriate based on the size of your account. While we accept unlimited requests and revisions, our output volume depends on many factors, namely depending on the total request volume and complexity. We will do our best to work with you to accommodate any priority items and your timelines, but we suggest you do not use our Services for time-sensitive projects.

We do our best to minimize any mistakes. However, due to the nature of creative design, we cannot guarantee all files delivered will be 100% error-free. When we deliver a file to you, you agree to review and proof all files for any errors or omissions and notify us if any changes or corrections are needed within seven (7) days of receipt. We will do our best to rush edits to correct any mistakes that you notify us about during this time period. If you notify us of any errors after that time period, we are not required to but intend to try to work with you to make corrections.

The speed of your account is determined by how many subscriptions you have. A subscription is a measurement of output and represents what we can accomplish in a business day, with our team, our software, and our graphic design platform. What we can create with a single subscription depends on many factors, including, but not limited to: (i) the type of plan; (ii) the volume of requests; (iii) and the complexity of requests. We do not guarantee the amount of work that we can create with a single subscription. To increase the volume of work we can complete within a business day, we suggest you add subscriptions to your account.

You are the owner and/or controller of all of your information, data or materials that you provide to us to use the Services (“Customer Content”). By submitting Customer Content to us, you are representing that you are the owner of such Customer Content and/or have the necessary rights, licenses, and authorization to distribute it. You grant us a worldwide, royalty free, non-exclusive license to access and use Customer Content to provide the Services.

You are, and will be, the sole and exclusive owner of all right, title, and interest in and to the deliverables, including all intellectual property rights therein. We agree that with respect to any deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such deliverables are deemed a “work made for hire” for you. To the extent that any deliverables do not constitute a “work made for hire,” we irrevocably assign you all right, title, and interest throughout the world in and to the deliverables, including all intellectual property rights therein. Notwithstanding the foregoing, the terms of this Section 4.5 are subject to your compliance with this Agreement, your full payment of applicable amounts due and the terms of Sections 4.6 and 5 below.

In the course of providing the Services, we may use certain pre-existing materials. We and our licensors are, and will remain, the sole and exclusive owners of all right, title, and interest in and to any pre-existing materials. We grant you a perpetual, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, display, and distribute any pre-existing materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Services or deliverables. We expressly reserve all other rights in and to such pre-existing materials.

Creative Kaiju does not support and will not tolerate its Service being used to discriminate against others, especially when based on race, religion, sex, sexual orientation, age, disability, ancestry, or national origin. You are not permitted to use the Service in a manner which would or would likely incite, promote or support such discrimination and you must not use the Service to incite or promote hostility or violence. If we believe in our sole determination that your use of the Service is being used to discriminate, especially if based on race, religion, sex, sexual orientation, age, disability, ancestry, or national origin, we may permanently or temporarily terminate or suspend your access to the Service, without notice and liability for any reason.

Use of Stock Materials

Subject to compliance with this Agreement and full payment of applicable amounts due, we grant you a revocable, non-exclusive, non-transferrable, royalty-free, worldwide right and license to the Licensed Content for your personal or professional use, including but not limited to use in your own design project. Except as expressly permitted by us, you agree not to, directly or indirectly, stockpile, sell, lease, sublicense, distribute, copy, reproduce, republish, reverse engineer, download, data mine, or modify any Licensed Content made available through the stock materials provided by Creative Kaiju.

To the extent that we license the Licensed Content from any third party, you agree to comply with the relevant third-party license. Except with our written permission, you may not: (i) sell, resell, rent, lease, sublicense, assign, grant a security interest in, or otherwise transfer any part of your rights to use Licensed Content apart from a design deliverable prepared by us or as part of a design product for your own personal use; (ii) change, alter, adapt, translate, convert, modify, or make any derivative works of any Licensed Content; (iii) falsely represent that you are the original creator of any Licensed Content; (iv) use Licensed Content in a pornographic, defamatory, or other unlawful manner; (vi) use Licensed Content in any way that allows others to download, extract, or redistribute Licensed Content as a standalone file or work.(vii) use Licensed Content that features models or property in connection with a subject that would be unflattering or unduly controversial to a reasonable person (for example, sexually transmitted diseases), must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model.

Our licensors and we retain ownership over Licensed Content licensed from them, even if incorporated into your graphic design deliverable. We reserve the right to terminate, revoke, or withdraw all licenses upon your failure to comply with any provisions of this Agreement. In the event of any termination, you will have no further right to make use of the Licensed Content, which may include the Licensed Content that we have included in your design deliverable.

Limitations

In no event will Creative Kaiju Corp., any of our directors, employees, or agents be liable to you or any third party for any direct, indirect, consequential, exemplary, incidental, special, or punitive damages, including lost profit, lost revenue, loss of data, or other damages arising from your use of the site. Even if we have been advised of the possibility of such damages.

Notwithstanding anything to the contrary contained herein, our liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to $50 (USD).

Dispute Resolution

Any legal action or whatever nature brought by either you or us (collectively, the “Parties” and individually, a “Party”) shall be commenced or prosecuted in the Provincial and federal courts located in Ontario, Canada, and the Parties hereby consent to and waive all defences of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use. In no event shall any claim, action, or proceeding brought by either Party related in any way to the Site be commenced more than 6 months after the cause of action arose.

Corrections

There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.

Portfolio Rights

You hereby grant us a limited, nonexclusive, non-sublicensable, royalty-free worldwide license to use, publish, and display any deliverables that we develop in connection with the Services for the purpose of marketing and advertising (the “Portfolio Rights License”). You may revoke the Portfolio Rights License at any time by sending written notice to hello@creativekaiju.com. If you revoke the Portfolio Rights License, we will stop using your deliverables for marketing and advertising purposes, however your deliverables may continue to exist elsewhere online such as where the deliverables have been used by others in accordance with the Portfolio Rights License.

Ownership, Copyright, Trademark, and Provided Files

All design and original source files created while you are enrolled with us are yours to keep and own. You must provide our designers with sufficient content and instructions to complete the work. All files submitted to Creative Kaiju Corp. must be owned by you and not be stolen from another entity. You are 100% responsible for all materials submitted to us to create designs for you. Even in the completed design that we submit to you, we are not liable for any infringement on intellectual property rights.

You agree to indemnify, defend, and hold harmless Creative Kaiju Corp. and its affiliates, officers, members, managers, agents, successors and assigns (the “Indemnified Parties”) from and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees, arising out of or relating to (i) your breach of any of the terms of this Agreement, (ii) your use of the services provided pursuant to the Site, and (iii) infringement of third party’s intellectual property rights or other proprietary rights.

Releasing Completed Work

We hold ourselves to a high standard of delivery and would never intentionally submit final files with errors to you. However in a rare event that you do receive a file with errors, please notify us promptly and we will do our best to quickly make the revisions and re-submit to you. Creative Kaiju Corp. is not liable for any loss of business or loss of revenue incurred from errors in our design files. Please make sure you check the design before ordering print or finalizing for marketing.

Confidentiality

For purposes of this Agreement, the term “Confidential Information” means non-public or proprietary information, including, without limitation, information relating to current or future business, products and services, research, images, development, design details and specifications, and marketing plans.

During the course of our relationship, you may disclose to us your Confidential Information. We agree to hold in confidence and not disclose to any third party any of your Confidential Information, except as approved or directed in writing by you, and will use your Confidential Information for no purpose other than for the Services. We will limit access to your Confidential Information to only those employees, officers, directors, contractors, representative and agents who are involved in providing Services to you. We will be responsible to you for any breach of this provision by our employees, officers, directors, contractors, representative and agents.

During the course of our relationship, we may similarly disclose to you our Confidential Information. You agree to hold in confidence and not disclose to any third party any of our Confidential Information, except as approved or directed in writing by us, and will use our Confidential Information for no purpose, except as permitted by this Agreement. You will limit access to our Confidential Information to only those employees, officers, directors, contractors, representative and agents to whom it is necessary to disclose our Confidential Information. You will be responsible to you for any breach of this provision by your employees, officers, directors, contractors, representative and agents.

Notwithstanding anything to the contrary in this Agreement, the following is not Confidential Information: (a) information that was in the public domain at the time of its disclosure or has entered the public domain without breach of this Agreement; (b) information that was already in the rightful possession of a party at the time of disclosure; (c) information that is independently developed by a party without breaching this Agreement; or (d) information that becomes known to a party, without restriction, from a third party source not directly or indirectly involving a breach of this Agreement.

The confidentiality obligations under this Agreement will survive for five (5) years after the termination of this Agreement.

Delivery Output

You may submit as many design requests as you humanly can and all requests will be stored on our management software and prioritized accordingly. Our team will work on one design at a time for you including revisions. In order for us to move onto the next project, your current project must be fully completed and approved before we can move onto the next project. You can also Pause, mark Pending or Cancel a project if you no longer wish for that project to be completed. Pausing, marking Pending or Canceling a project will instantly stop its production and allow our team to move onto the next project in line.

Site Management

We reserve the right, but not the obligation to:
– Monitor the Site for violations of these Terms of Use.
– Take appropriate legal action against anyone who, in our sole discretion, violates the law of these Terms of Use, including without limitation, reporting such user to law enforcement authorities.
– In our sole discretion and without limitation, refuse, restrict access to, limited the availability of, or disable (to the extent technologically feasible) any of your contributions or any portion thereof.
– In our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems.
– You will not access the Site through automated or non-human means, whether through a bot, script, or otherwise.

Otherwise, manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.

Governing Law

These Terms of Service and any separate agreements whereby we provide you services shall by governed by and construed in accordance with the laws of 4090 Living Arts Drive, Mississauga, Ontario, L5B 4M8, Canada.

Term and Termination

This Agreement will expire and terminate upon the expiration or termination of your account or subscription to a Service. All sections of this Agreement which by their nature should survive termination will survive termination, including but not limited to, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

We may terminate this Agreement at any time upon notice if you default or breach this Agreement. Upon expiration or termination of your account or subscription to a Service, all rights under this Agreement relating to such Service will immediately terminate, you will lose all access to the applicable Service, including access to your account and Customer Content or other files. If we terminate the Agreement for your breach, any licenses to Licensed Content will terminate.

Disclaimer of Warranties

The site is provided on an as-is and as-available basis. You agree that your use of the site and our service will be at your full risk. To the fullest extent permitted by law, we disclaim all warranties, express or implied, in connection with the site and your use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We make no warranties or representations about the accuracy or completeness of the site’s content or the content of any websites linked to the site and we will assume no liability or responsibility for any:
– Errors, mistakes, or inaccuracies of content materials
– Personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the site.
– Any unauthorized access or use of our secure servers and/or financial information stored therein.
– Any interruption or cessation of transmission to or from the site.
– Any bugs, viruses, trojan horses, or the like which may be transmitted to or through the site by any third party.
– Any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use any content posted, transmitted, or otherwise made available via the site.
– We do not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the site, any hyperlinked website, or any website or mobile application featured in any banner or other advertising.

Liability Waiver

WE WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, REVENUES, DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THIS SITE. TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY, FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED OR EXPRESSED WARRANTIES, SHALL NOT EXCEED FIFTY DOLLARS, REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT, OR OTHERWISE. THIS PARAGRAPH DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Indemnification

YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND COSTS, ARISING OUT OF OR IN ANY WAY CONNECTED TO CUSTOMER CONTENT OR USE OF THE SERVICES OR ANY DELIVERABLES. YOU SHALL COOPERATE AS REQUIRED BY US IN THE DEFENCE OF ANY CLAIM. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENCE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, AND YOU WILL NOT, IN ANY EVENT, SETTLE ANY CLAIM WITHOUT OUR PRIOR WRITTEN CONSENT.

Links to Third-Party Platforms

If this Site is available through any third-party platform, or if we provide links from this Site to any third-party platform, then we do not accept responsibility for any content or practices of such third parties.

Assignment

This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, without our prior written consent. We may freely assign this Agreement, including, without limitation, in connection with a merger, acquisition, bankruptcy, reorganization, or sale of some or all of our assets or stock.

Severability

If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect, and the invalid, illegal or unenforceable provision(s) will be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).

Non-Waiver

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach, in any one instance, will not waive such term or condition or any subsequent breach.

Force Majeure

If we are unable to perform any obligation under this Agreement because of any matter beyond our reasonable control, including but not limited to pandemic or wide spread out break of infectious diseases, government shutdown, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial/labor disputes (whether or not involving our employees), acts of government, loss of or problems with telecommunications, utility services or other third party services, and hostile network attacks (each, a “Force Majeure Event”), we will have no liability to you for such failure to perform; provided, however, that we will resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.

Entire Agreement

If you have executed a separate agreement with us applicable to your access to and use of this Site or our Services, then the terms and conditions of that agreement prevail to the extent of any conflict with this Agreement. In all other cases, this Agreement constitute the entire agreement between the parties concerning its subject matter and supersedes all prior communications and proposals.