Terms of Service

Last updated on June 15, 2016

1. LICENSE

1.1. Governing Agreement

The terms of this agreement (“Terms of Service” or “Terms”) govern the relationship between you and Merchbar (hereinafter “Merchbar” or “us” or “we”) regarding your use of our services, which include applications for mobile devices and Merchbar branded websites (the “Service”). In this agreement, “Merchbar” means Merchbar, Inc., a Delaware corporation, located at 182 Howard Street, Suite 212, San Francisco, California 94105-1611. “Merchbar” includes Affiliates, which shall mean subsidiaries, parent companies, joint ventures and other corporate entities under common ownership.

1.2. Privacy Policy

Use of the Service is also governed by Merchbar’s Privacy Policy, which is incorporated herein by reference. Your privacy is important to us. We designed our Privacy Policy to make important disclosures about how we collect and use your content and information and how you can use the Service to share such information with others. We encourage you to read our Privacy Policy carefully and use it to make informed decisions.
By creating an account or accessing or using the Service you accept and agree to be bound by these Terms of Service and consent to the collection, use and storage of your information as outlined in our Privacy Policy.

1.3. Updates to the Terms of Service and Merchbar Privacy Policy

Merchbar reserves the right, at our discretion, to change, modify, add or remove portions of these Terms of Service and its Privacy Policy at any time by posting the amended Terms on or within the Service. You may also be given additional notice, such as an e-mail message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use the Service. Except as otherwise stated, all amended terms shall automatically be effective 30 days after they are initially posted. Merchbar may also revise other policies, codes or rules at any time, and the new versions will be available at www.merchbar.com or in the Service. No amendment to the Terms of Service or Privacy Policy shall apply to any dispute of which Merchbar had actual notice before the date of the amendment.
This agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
If at any point you do not agree to any portion of the then-current version of our Terms of Service, the Merchbar Privacy Policy, or any other Merchbar policy, rules or codes of conduct relating to your use of the Service, your license to use the Service shall immediately terminate and you must immediately stop using the Service.
To the extent the Terms of Service or Merchbar Privacy Policy conflict with any other Merchbar terms, policy, rules or codes of conduct, the terms contained in these Terms of Service and in the Merchbar Privacy Policy shall govern.

1.4. Grant of a Limited License to Use the Service

Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Merchbar policies, Merchbar grants you a non-exclusive, non-transferable, revocable limited license, subject to the limitations set forth herein, to access and use the Service using a Merchbar supported web browser or mobile device solely for your own purposes.

1.5. Accessing the Service

By accessing or using the Service, including use of any Merchbar mobile application or browsing any Merchbar website, you accept and agree to these Terms of Service and the Privacy Policy.
You may also be required to register an account on the Service (an “Account”) and/or have an account with the applications provider for your mobile device. You represent and warrant that you are not prohibited from receiving products of U.S. origin, including services, software or any merchandise or products purchased through your use of the Service. If you are between the ages of 13 and 17, you represent and warrant that your legal guardian has reviewed and agreed to these Terms.
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.

1.6. Use of the Service

The following restrictions apply to the use of the Service:
a. You shall not create an Account or access the Service if you are under the age of 13.
b. You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument by minors.
c. You shall not have more than one Account at any given time and shall not create an account using a false identity or information, or on behalf of someone other than yourself.
d. You shall not create an Account or use the Service if you are a convicted sex offender.
e. You shall not have an Account or use the Service if you have previously been removed by Merchbar.
f. You shall not use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals.
g. You shall use your Account only for non-commercial purposes.
h. You shall not use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages to anyone.
i. You shall not use your Account to engage in any illegal conduct.
j. You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without the written permission of Merchbar.
k. You shall not access or use an Account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without Merchbar’s permission.

1.7. Account Information

When creating or updating an Account on the Service, you may be required to provide Merchbar with certain personal information, which may include your name, birth date, e-mail address, band preferences, music listening history, sizing information, item and band subscriptions, shipping address and, in some cases, payment information. This information will be held and used in accordance with Merchbar’s Privacy Policy and relevant “just-in-time” notices, if any, provided at the point of information collection or use. You agree that you will supply accurate and complete information to Merchbar, and that you will update that information promptly after it changes.
You understand that on certain Merchbar websites your user ID number, name and profile picture will be publicly available and that search engines may index your name and profile photo.

1.8. Username and Password

During the Account creation process, you may be required to select a username and a password (“Login Information”). The following rules govern the security of your Login Information:
a. You shall not share the Account or the Login Information, let anyone else access your Account, or do anything else that might jeopardize the security of your Account.
b. If you become aware of or reasonably suspect any breach of security, including any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Merchbar and modify your Login Information.
c. You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you.
d. You are responsible for anything that happens through your Account. Merchbar reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.

1.9. License Limitations

Any use of the Service in violation of the limitations contained herein is strictly prohibited, can result in the immediate revocation of your limited license granted herein, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE IS A VIOLATION OF MERCHBAR POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
a. Engage in any act that Merchbar deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms or other policies.
b. Make improper use of Merchbar’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel.
c. Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation.
d. Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service.
e. Use the Service in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third party software designed to modify or interfere with the Service.
f. Without Merchbar’s express written consent, modify or cause to be modified any files that are a part of the Service.
g. Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”), or (2) the enjoyment of the Service by any other person.
h. Institute, assist or become involved in any type of attack, including distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service.
i. Attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Merchbar, including by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service.
j. Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive.
k. Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content.
l. Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including Merchbar employees or customer service representatives.
m. Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a Merchbar employee.
n. Without Merchbar’s express written consent, use the Service or any part thereof for any commercial purpose, including communicating or facilitating any commercial advertisement or solicitation.
o. Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items.
p. Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service.
q. Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about Merchbar users or content. Merchbar may, at its sole and absolute discretion, allow the use of certain third-party user interfaces.
r. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device.
s. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure.
t. Bypass any robot exclusion headers or other measures we employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data.
u. Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service, or (2) any connection using programs, tools, or software not expressly approved by Merchbar.
v. Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Merchbar.
w. Copy, modify or distribute rights or content from any Merchbar site, or Merchbar’s copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service.
x. Solicit or attempt to solicit personal information from other users of the Service.
y. Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
z. Upload or transmit or attempt to upload or transmit, without Merchbar’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).

1.10. Suspension and Termination of Account and Service

WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR MERCHBAR SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND MERCHBAR IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS. WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO THE SERVICE AND OUR SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. Merchbar reserves the right to stop offering and/or supporting the Service or a particular part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, Merchbar shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service. Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted. You may cancel any Account registered to you at any time by following the instructions at www.merchbar.com.

1.11. Ownership

1.11.1. Service

The Service (including without limitation any titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, and chat transcripts) are owned by Merchbar, Inc. Merchbar reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, related to the Service.

1.11.2. Accounts

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF MERCHBAR. GENERALLY, ACCOUNTS CREATED WITH MERCHBAR WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.

1.11.3. User Content

“User Content” means any communications, images, sounds, and all the material, data, and information that you upload or transmit through a Merchbar client or the Service, or that other users upload or transmit, including without limitation any chat text. By transmitting or submitting any User Content while using the Service, you affirm, represent and warrant that such transmission or submission is (a) accurate and not confidential, (b) not in violation of any applicable laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content, (c) free of viruses, adware, spyware, worms or other malicious code, and (d) you acknowledge and agree that any of your personal information within such content will at all times be processed by Merchbar in accordance with its Privacy Policy. You own the User Content you upload or transmit. You hereby grant Merchbar and its Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.

2. USER CONTENT

2.1. Content Screening

You are entirely responsible for all User Content you post or otherwise transmit via the Service. We assume no responsibility for the conduct of any user submitting any User Content nor monitoring the Service for inappropriate or illegal content or conduct. We have no obligation to monitor User Content. If we choose at any time, in our sole discretion, to monitor the Service, we have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and we may monitor and/or record your interaction with the Service or communications (including without limitation chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.

2.2. Information Use by Other Members of the Service

2.2.1. Public Discourse & Unsolicited Ideas

The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. Merchbar cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service. Merchbar shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
If you submit suggestions, proposals, comments or other ideas or materials (collectively “Submissions”) within the Service you understand and agree that Merchbar (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
MERCHBAR IS NOT RESPONSIBLE FOR A MEMBER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST OR SHARE IN CONNECTION WITH THE SERVICE.

2.2.2. Responsible For Your Own Content

You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others. Information, materials, products or services provided by other users may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service, and Merchbar assumes no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please contact us promptly using the contact information at the end of these Terms of Service or through a customer support link within the Service.
Merchbar may reject, refuse to post or delete any User Content for any or no reason. Merchbar reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.

2.3. Disclosure

Your information may be disclosed under certain circumstances more fully described in the Privacy Policy.

2.4. User Interactions

2.4.1 Member Disputes

You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service. Merchbar reserves the right, but has no obligation, to become involved in any way with these disputes.

2.4.2 Release

If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from liability for any potential claims, demands and damages (actual and consequential) of any kind or nature, known or unknown, arising out of or in any way related to such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you acknowledge that you understand, expressly waive any rights that you have under, California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”

 

3. TEXT MESSAGES

If you elect to receive Merchbar Marketing Alerts and support text messages from us, either via our website or by sending a text message indicating your consent, you are providing (and signing) your prior express written consent to receive recurring marketing or promotional and support text messages from us (each, a “Text Message”) sent through an automatic telephone dialing system. These may include cart abandon messages. Message frequency varies. This service is optional, and your consent is not a condition for purchase. You can opt out of receiving any further Text Messages from this program at any time by replying “STOP” to any Text Message you receive from us. For help, reply “HELP” to any Text Message you receive from us or email text-support@merchbar.com. In addition to any fee of which you are notified, your mobile provider’s message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages. Under no circumstances will we or our affiliates be responsible for any Text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit Text messages, you may not receive the Text Messages. Neither we nor the wireless carriers (such as T-Mobile) will be liable for any delays in the receipt of, or failure to deliver, any Text Messages, as delivery is subject to effective transmission from your network operator. Text Message services are provided on an “AS IS” basis. Data obtained from you in connection with any Text Message services may include your cell phone number, your provider’s name and the date, time and content of your text messages. We may use this information in accordance with our Privacy Policy to contact you and to provide the services you request from us. For more information on how we use telephone numbers, please read our Privacy Policy.


4. THIRD PARTY ADVERTISING

4.1. Third Party Advertisements

You understand that the Service may feature advertisements from Merchbar or third parties. Merchbar’s disclosure of information for third party advertising is addressed in Merchbar’s Privacy Policy.

4.2. Links to Third Party Sites and Dealings With Advertisers

Merchbar may provide links on the Service to third-party websites or vendors who may invite you to participate in promotional offers in return for receiving an optional component of the Service, upgrades to the Service or additional services. Any charges or obligations you incur in your dealings with these third parties are solely your responsibility. Merchbar makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third-party content, goods and/or services. Such linked sites are not under the control of Merchbar and may collect data or solicit personal information from you. Merchbar is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Merchbar of these linked sites.

5. COPYRIGHT NOTICES/COMPLAINTS

It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Merchbar reserves the right to terminate without notice any user’s access to the Service if that user is determined by Merchbar, in its sole discretion, to be a “repeat infringer.” In addition, Merchbar accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

6. UPDATES TO THE SERVICE

You understand that the Service may change over time. Merchbar may require that you accept updates to the Service you may access on the Internet or have installed on your computer or mobile device. You acknowledge and agree that Merchbar may update the Service without notifying you. You understand and acknowledge that you may need to update third party software from time to time in order to receive the Service.

7. PRODUCTS

7.1 General

If you wish to purchase any goods or services through the Service (“Products”), we will ask you to supply certain information applicable to your purchase, including payment and other information. Any such information will be treated as described in our Privacy Policy. All information that you provide to us or our third-party payment processor must be accurate, current and complete. YOU REPRESENT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any taxes applicable to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order. Descriptions, images, references, features, content, specifications, products, price and availability of any Products are subject to change without notice. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see may depend on the mobile device or computer on which you access the Service, and we cannot guarantee that the color will be accurately displayed.
It is your responsibility to ascertain and obey all applicable local, state, federal and international laws in regard to the possession, use and sale of any Product purchased through the Service. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to (i) limit the available quantity of or discontinue any Product, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or similar promotions, (iii) bar any user from making any purchases, or (iv) to refuse to provide any Product to any user.

7.2 Prices and Availability; Orders

The prices and availability of Products are subject to change without notice. After placing an order, you will receive an email from us acknowledging that we have received your order (an “Order Confirmation”). Please note that receipt of an Order Confirmation does not mean that your order has been accepted. Your order constitutes an offer from you to purchase a Product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an email confirming the shipment of your order (a “Shipping Confirmation”). An agreement has not been reached between us until we send you a Shipping Confirmation, which agreement will apply to only those products appropriately identified in the Shipping Confirmation. We reserve the right to cancel your order, in whole or in part, at any time before a Shipping Confirmation is sent and we may rescind our acceptance and cancel your order if there is an error in price or if any of the Products ordered are no longer available.

7.3 Taxes

In states where we have no physical presence, we may not be required to collect and remit sales tax for purchases of Products. However, some states require that their residents file a sales or use tax return for items purchased through the Service. You should consult your state and local tax laws or a CPA to determine compliance with tax laws and regulations in your area. In some states we may collect and remit sales tax. For purchases where sales tax is applicable, you will see the tax calculated on the checkout page before you are asked to confirm the purchase. We use commercially reasonable efforts to calculate, collect and remit the correct amount of tax required on each taxable purchase, but we do not guarantee the accuracy of such amount. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you hereby waive any right to any claims you may have or develop regarding the amount of tax we collect from you in connection with the purchase of any Products and you further agree to hold Merchbar, its officers, directors, employees, agents and representatives harmless for any harm or other damages you may incur as a result of any such error.

7.4 Delivery

Most Product orders are shipped within twenty-four hours after the placing of an order. The final shipping cost and estimated delivery time applicable to a Product order will be available to you during checkout. Please note that some items may require a longer ship-out and/or delivery timeframe. We are unable to provide you with the option to specify your carrier of choice. International deliveries may incur additional charges to cover duty, VAT and an international service fee to cover additional fulfillment costs incurred by Merchbar for such orders.

7.5 Risk of Loss

The risk of loss for any Products purchased by you via the Service shall pass to you upon tender of the item to the applicable shipment carrier.

7.6 Returns

If you are not completely satisfied with a Product (other than a Product in digital format), you may return it to us for any reason within 30 days after the date of payment therefor. Products in digital format may not be returned. To be eligible for a refund, your Product must be returned within 30 days after the date of payment therefor in saleable condition, along with the original packaging, including Universal Product Code (UPC), your receipt or packing slip, and any additional materials accompanying the Product upon your original receipt of delivery. If appropriate, we will refund your purchase by check or by credit to the account used for payment, at our option. Products that we receive from you that are ineligible for a refund will be sent back to you at your cost.

7.7 Manufacturer’s Warranties

Merchbar does not offer warranties on any Products. However, some Products available through the Service may be covered by a warranty provided by the manufacturer of such Products. Such manufacturer’s warranties, if any, may be included with a Product when shipped or may be available at the manufacturer’s website. To obtain the benefit of any such manufacturer’s warranty, if any, you must follow the instructions in the applicable warranty and deal directly with the applicable manufacturer.

7.8 Information Sharing

When you purchase Products we may share your personal information, including your email address, with third parties in order to complete your order and for the marketing purposes of such third parties. Please refer to our Privacy Policy for further information on how we collect and share your information.

8. DISCLAIMERS; LIMITATIONS; WAIVERS; INDEMNIFICATION

8.1. DISCLAIMER OF WARRANTIES

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT THE SERVICE AND ALL PRODUCTS OFFERED AND SOLD IN CONNECTION WITH THE SERVICE ARE PROVIDED BY MERCHBAR ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSELY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER MERCHBAR NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “MERCHBAR PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

8.2. LIMITATIONS; WAIVERS OF LIABILITY

YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MERCHABAR PARTIES DISCLAIM ANY AND ALL LIABILITY FOR ANY DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE IN ANY JURISDICTION AND UNDER ANY UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, TORT (INCLUDING NEGLIGENCE) OR BREACH OF WARRANTY OR CONTRACT, AND THAT THE MERCHBAR PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING FOR LOSS OF PROFITS OR GOODWILL.
YOU FURTHER ACKNOWLEDGE THAT THE MERCHBAR PARTIES WILL NOT BE HELD LIABLE FOR, NOR WILL YOU SEEK TO HOLD THE MERCHBAR PARTIES LIABLE FOR, THE CONDUCT OF ANY THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL BSUINESSES OR WEBSITES, AND THAT YOU ASSUME THE ENTIRE RISK OF USE OF THE FOREGOING.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL THE MERCHBAR PARTIES BE LIABLE TO YOU FOR AN AMOUNT ABOVE THE AMOUNT YOU HAVE PAID TO MERCHBAR IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM OR CUASE OF ACTION.

8.3. Indemnification

You agree to indemnify, defend and hold harmless Merchbar, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any and all claims, losses, damages, liabilities, including legal fees and expenses, arising out of or related to your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Merchbar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Merchbar, and you agree to cooperate with Merchbar’s defense of any such claims or causes of action. Merchbar will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account(s) or use of the Service.

9. DISPUTE RESOLUTION

9.1. General

If a dispute arises between you and Merchbar, we aim to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Merchbar agree that we will resolve any dispute or controversy at law or equity that arises out of these Terms or your use of the Service (a “Dispute”) in accordance with one of the choices below or as we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve a Dispute through alternative dispute resolution procedures.

9.2. Governing Law; Choice of Forum

These Terms and any Disputes shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. You agree that any Dispute will be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by us or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.

9.3. Arbitration Option

Upon mutual agreement of the parties hereto, we may elect to resolve any Dispute in a cost effective manner through binding arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon the parties. In such a circumstance, any judgment or the award rendered by the ADR provider shall be final and binding.

10. SEVERABILITY

If any portion of these Terms of Service or of the Merchbar Privacy Policy is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which shall continue to be in full force and effect.

11. GENERAL PROVISIONS

11.1. Assignment

Merchbar may assign or delegate these Terms of Service and/or the Merchbar Privacy Policy, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Policy without Merchbar’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.

11.2. Supplemental Policies

Merchbar may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.

11.3. Entire Agreement

These Terms and any supplemental policies or documents expressly incorporated by reference herein (including our Privacy Policy), contain the entire understanding between you and us regarding your use of the Service, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and us with respect to the Service.

11.4. No Waiver

Our failure to enforce your strict adherence to these Terms or the terms of the Privacy Policy or any failure to exercise any right granted to us herein shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.
The express waiver by us of any provision, condition, or requirement of these Terms or the Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Except as expressly and specifically set forth herein, none of our representations, statements, consents, waivers, or other acts or omissions shall be deemed a modification of these Terms nor be legally binding, unless otherwise stated in writing.

11.5. Notices

All notices given or required from us may be accomplished by means of postings on www.merchbar.com, e-mail or any other communications means allowed by the information you provide to us. All notices given by you or required from you under these Terms of Service or the Privacy Policy shall be in writing and addressed to: Merchbar, Inc., Attn: LEGAL DEPARTMENT, 182 Howard Street, Suite 212, San Francisco, California 94105-1611. Any notices that you provide without compliance with this section shall have no legal effect.

11.6. Equitable Remedies

You acknowledge that the rights granted and obligations created under these Terms are of a unique and irreplaceable nature, the loss of which shall irreparably harm Merchbar and which cannot be replaced by monetary damages alone. Accordingly, Merchbar shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.

11.7. Force Majeure

Merchbar shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Merchbar, including without limitation those due to unforeseen circumstances or cause beyond Merchbar’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.

 

 

YOUR USE AND ACCESS TO THE SERVICES PROVIDED BY MERCHBAR AND DESCRIBED BELOW ARE CONDITIONED ON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THE TERMS OF THIS MERCHBAR SALES AGREEMENT. IN THE EVENT YOU ARE CURRENTLY USING AND ACCESSING THE SERVICES PROVIDED BY MERCHBAR PURSUANT TO A MERCHBAR SALES AGREEMENT THAT PREDATES THE EFFECTIVE DATE INDICATED BELOW, SUCH AGREEMENT, UPON THE EXPIRATION THEREOF, WILL BE AUTOMATICALLY RENEWED UNDER THE TERMS OF THIS UPDATED AGREEMENT SHOULD YOU ELECT TO CONTINUE USING AND ACCESSING THE SERVICES PROVIDED BY MERCHBAR.

 

MERCHBAR SALES AGREEMENT

Effective Date: January 1, 2022

IMPORTANT LEGAL NOTICE

PLEASE READ THIS INTEGRATION AND SALES AGREEMENT CAREFULLY, INCLUDING THE  SECTION TITLED "GOVERNING LAW," WHICH REQUIRES THAT DISPUTES ARE RESOLVED ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS.

BY USING THE SERVICES DESCRIBED HEREIN, YOU AGREE TO BE BOUND BY THIS INTEGRATION AND SALES AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS INTEGRATION AND SALES AGREEMENT IN THEIR ENTIRETY, DO NOT CONTINUE TO ACCESS THE SERVICES, OFFER YOUR PRODUCTS THROUGH MERCHBAR OR OTHERWISE USE ANY MERCHBAR PROVIDED SERVICE, INCLUDING THIS WEBSITE.

IF YOU ARE A MUSICAL ARTIST, THIS AGREEMENT IS ONLY FOR YOU IF YOU CONTROL YOUR OWN MERCHANDISE RIGHTS. IF YOU HAVE LICENSED OR OTHERWISE TRANSFERRED YOUR MERCHANDISE RIGHTS TO A THIRD PARTY MERCHANDISE COMPANY OR OTHER UNAFFILIATED PARTY, PLEASE DO NOT ACCESS OR USE THE SERVICES.

Introduction

Welcome to Merchbar. We provide various Internet-based services (the “Services”) to help you sell merchandise to consumers through the Merchbar Platform (as defined below). As described in greater detail, we offer two categories of plans based on the type of seller you are, specifically, (i) Independent Artist Plans if you are an Artist, and (ii) Enterprise Plans if you are a merchandise company, record label or similar organization. Within each such category there are various plan tiers from which you can select based on your needs, operations, sales and product offerings and eligibility. As used in this agreement the Merchbar Platform shall mean www.merchbar.com, the Merchbar mobile application (the “App”), any other websites or applications owned or operated by Merchbar Inc. (“we” or “Merchbar”) or its affiliates, and their product listing feeds, attribution tracking systems, advertising systems and advertising systems. Use of the Platform and Services are governed by this Merchbar Integration and Sales Agreement, which includes its Exhibits (the “Agreement”).

By entering into this Agreement and selecting the Independent Artist Plan, you are warranting that you are a musical artist (an “Artist”), you independently maintain an on-line store (the “Store”) for the sale of merchandise products (“Products”) through Shopify, Inc. (“Shopify”) or other supported platforms, and you control your merchandise rights and operations and have not licensed or otherwise transferred your merchandise rights to a third party merchandise

company or to any other person or entity. This Agreement will allow Merchbar the right to offer those Products for sale to consumers through the Merchbar Platform, take orders for those Products and pass those orders to you for fulfillment through Shopify or other supported platforms. You will be charged the monthly subscription fee (“Subscription Fee”) applicable to the plan you select below. For each Product sold, Merchbar will retain the referral and processing fee applicable to your plan below (“Merchbar Fee”) and will remit the balance of the purchase price to you all as set forth in greater detail below.

By entering into this Agreement and selecting the Enterprise Plan, you are warranting that you are a merchandise company, record label or similar organization that maintains a Store for the sale of Products on behalf of one or more musical artists and/or entertainment personalities, that you operate such Store through Shopify or other supported platforms, and that you have secured the rights to offer such Products for sale to consumers in addition to the right to authorize third parties, such as Merchbar, the right to offer such Products for sale to consumers. Under the Enterprise Plan, this Agreement will allow Merchbar the right to offer your Products for sale to consumers through the Merchbar Platform, take orders for those Products and pass those orders to you for fulfillment through Shopify or other supported platforms. You will be charged the monthly Subscription Fee applicable to the plan you select below. For each Product sold, Merchbar will retain the Merchbar Fee applicable to your Plan below and will remit the balance of the purchase price to you as set forth in greater detail below.

Selling Plans

I. Independent Artist Plans. If you are an Artist, upon entering into this Agreement you shall elect one of the following plans for Merchbar to serve as your exclusive online distribution partner:

Lite. For a one time verification fee of $24.99, a monthly Subscription Fee of $2.99 and a Merchbar Fee equal to 18.5% of each Product sale, you will

be able to sell your Products to consumers through the Merchbar

Platform. This may not include visibility through Merchbar’s affiliate

partners such as Spotify, YouTube, and Instagram.

Pro. For a monthly Subscription Fee of $4.99 and a Merchbar Fee equal to 15% of each Product sale, you will be able to sell your Products to

consumers through the Merchbar Platform. This may not include visibility through Merchbar’s affiliate partners such as Spotify, YouTube, and

Instagram.

Gold. For a monthly Subscription Fee of $4.99 and a Merchbar Fee equal to 15% of each Product sale, you will be able to sell your Products to

consumers through the Merchbar Platform, which includes visibility

through Merchbar’s affiliate partners such as Spotify, YouTube, and

Instagram (provided in each case that you and your Products satisfy any requirements otherwise set forth by each applicable affiliate partner). You will also be eligible to have your products included in Merchbar

advertisements. To qualify for the Gold Plan you must meet the Minimum Gold Plan Requirements set forth below. If you have opted for the Gold

Plan but do not meet the Minimum Gold Plan Requirements set forth

below, you may be automatically transferred to the Plus Plan.

Plus. For a monthly Subscription Fee of $4.99 and a Merchbar Fee of 25% of each Product sale, you will be able to sell your Products to consumers

through the Merchbar Platform, which includes visibility through

Merchbar’s affiliate partners such as Spotify, YouTube, and Instagram

(provided in each case that you and your Products satisfy any

requirements otherwise set forth by each applicable affiliate partner). You will also be eligible to have your products included in Merchbar

advertisements. If you select the Plus Plan but meet the Minimum Gold

Plan Requirements set forth below, you may be automatically transferred to the Gold Plan.

Please note, that each Artist subscription shall entitle you to a single artist listing on the Merchbar Platform. If you go by more than one name, each name shall require a separate subscription. (For example, if you wish to have merchandise listed both under “John Smith” and “The John Smith Band” each such name shall require a separate subscription).

II. Enterprise Plans. If you are a merchandise company, record label, management company, are planning to integrate a single store featuring items representing multiple artists, or integrate multiple stores representing multiple artists, upon entering into this Agreement you shall elect one of the following plans for Merchbar to serve as your exclusive online distribution partner:

Pro. For a monthly Subscription Fee of $29.99 and a Merchbar Fee equal to 15% of each Product sale, you will be able to sell your Products

to consumers through the Merchbar Platform. This may not include

visibility through Merchbar’s affiliate partners such as Spotify, YouTube,

and Instagram.

Gold. For a monthly Subscription Fee of $29.99 and a Merchbar Fee of 15% equal to each Product sale, you will be able to sell your Products to

consumers through the Merchbar Platform, which includes visibility

through Merchbar’s affiliate partners such as Spotify, YouTube, and

Instagram (provided in each case that you and your Products satisfy any

requirements otherwise set forth by each applicable affiliate partner). You may also be eligible to have your products included in Merchbar

advertisements. To qualify for the Gold Plan you must meet the Minimum Gold Plan Requirements set forth below. If you have opted for the Gold

Plan but do not meet the Minimum Gold Plan Requirements set forth

below, you may be automatically transferred to the Plus Plan.

Plus. For a monthly Subscription Fee of $29.99 and a Merchbar Fee equal to 25% of each Product sale, you will be able to sell your Products to

consumers through the Merchbar Platform, which includes visibility

through Merchbar’s affiliate partners such as Spotify, YouTube, and

Instagram (provided in each case that you and your Products satisfy any requirements otherwise set forth by each applicable affiliate partner). You may also be eligible to have your products included in Merchbar

advertisements. If you select the Plus Plan but meet the Minimum Gold

Plan Requirements set forth below, you may be automatically transferred to the Gold Plan.

III. Minimum Gold Plan Requirements

The following shipment timelines and customer support responsiveness terms and requirements constitute the “Minimum Gold Plan Requirements”. Failure to meet the Minimum Gold Plan Requirements listed below may result in your being transferred to a different service plan (e.g. transfer from Gold to Plus), and consequently, increased Merchbar Fees. Merchbar reserves the right to assess your performance and make plan adjustments on a monthly basis, provided you will be afforded at least one (1) month during which you may fail to meet the Minimum Gold Plan Requirements during any period of twelve (12) consecutive months before being transferred from the Gold Plan.

A. Product Listing Requirements. All Product listings for preorder items must specify the month in which the Product will be shipped. Merchbar may issue two (2) warnings for the first two (2) incidents involving missing preorder information, accompanied by a reminder to include shipping dates in Product descriptions for all preorder items. A third incident may result in a plan adjustment (e.g. transfer from Gold to Plus).

B. Shipment Requirements.

● 95% of in-stock Product orders must be shipped within three (3) business days from date of order.

● 90% of backordered and/or pre-ordered Products must be shipped within two (2) business days of your stated stocking date.

● All Product orders must be shipped with an approved Merchbar packing slip. Merchbar will issue two (2) warnings for the first two (2) incidents involving missing or incorrectly formatted packing slips, accompanied by a reminder to include accurate packing slips for all Product orders. A third incident may result in a plan adjustment (e.g. transfer from Gold to Plus).

● 95% of all Product orders must be shipped to the correct customer address. ● All Product orders must be shipped with valid tracking numbers that demonstrate movement within five (5) business days from the date of order.

C. Support Responsiveness.

● 95% of all Merchbar order status inquiries must be addressed within one (1) business day.

● All Merchbar order status inquiries must be addressed within two (2) business days. D. Returns.

● All Merchbar orders must include a correct packing slip with return instructions and return address.

● Upon request, you must cancel any Product order and provide a refund to such requesting customer within one (1) business day for any Product order showing as “unshipped” without an order status update.

● Merchbar does not accept or support “Final Sale” policies.

E. Print On-Demand. As an alternative to satisfying the Minimum Gold Plan Requirements set forth (in III. A – D) above, you may become eligible to participate in the Gold Plan by granting Merchbar a license to manufacture, market, promote, sell and distribute Products embodying

the artist related intellectual property to which you have rights through the Platform in exchange for a royalty payment of 20% of Merchbar’s actual retail selling price of such Products. To become eligible for the Gold Plan, you must license to Merchbar and deliver print ready files in a format designated by Merchbar either five (5) Product designs or 75% of your existing Product designs, whichever is greater.

General Terms and Conditions

I. This Agreement

A. Acceptance. This Agreement establishes the terms, conditions, rights, and responsibilities applicable to the sale of your Products by Merchbar and your use of the Platform and Service. To offer your Products for sale through Merchbar, you must accept the terms of this Agreement, which shall be confirmed by your continued access and use of the Services. If you do not accept the terms of this Agreement, your Products cannot be made available for sale through the Platform.

B. Amendments/Modifications. We may change this Agreement at any time, for any reason. We will notify you of changes by an e-mail from us and we will post the revised Agreement on the Platform for thirty (30) days before the new version takes effect. If you do not agree with the new version, you must terminate your Account before the new version’s effective date.

C. Age and Capacity Requirements. No one under the age of 18 may offer Products for sale through Merchbar. By accessing and using the Services, you represent and warrant that you meet the age requirements and are able to enter into legally-binding contracts.

D. Breach. Your breach of this Agreement results in the automatic termination of the rights and licenses granted to you under this Agreement.

II. Your Account

A. Opening an Account. An account ("Account") is required to use the Platform. To open an Account you must provide complete and accurate contact, business and valid payment information.

B. Maintenance. You must keep all Account information current, and your failure to do so means your Products may not be offered through the Platform or you may not receive Payments for any Products that are sold through the Platform.

C. You are responsible for keeping your password confidential, and for any and all use of your password and Account (including unauthorized use). You must immediately notify us if you think your password has been stolen, or if there has been any actual or attempted access involving your Account, to which you did not consent.

D. Term of Agreement/Account Termination.

1. Term of Agreement. The term of this Agreement (the “Term”) shall commence on the date you first commence using the Services and shall continue for a period of two (2) years. At the end of the initial two (2) year period, the Term shall continue thereafter for additional terms of one (1) year each unless terminated by either party at the end of said initial term or any additional term, upon notice given to the other at any time not less than three (3) months prior to the end of the then current Term. You may give such notice by emailing us with your Account information at mgmt@merchbar.com and we may give you notice by emailing you at the email address provided with your Account registration.

2. Your Obligations. On termination of your Account, you must immediately remove all links to the Platform and stop representing yourself as a user of our Services. Notwithstanding the foregoing, your obligations under this Agreement shall

survive any termination of your Account and you will be responsible for fulfilling all obligations including, without limitation, fulfilling outstanding orders, processing returns, and protecting all customer data.

3. Our Rights. We may, with or without notice:

a. suspend, limit your access to, or terminate your Account(s) for any reason, or no reason, including, but not limited to:

i. lack of Account activity for twelve (12) consecutive months; or

ii. repeated infringement of the intellectual property rights of

Merchbar or third parties.

b. remove any or all of your Content (as defined below) and/or Products from the Platform, our servers and/or directories; and

c. ban you from use of the Platform by any available means, including blocking your IP address.

4. Waiver. Any Payment which is outstanding and unclaimed for twelve (12) months or more after it is made to you becomes our sole property to retain or otherwise dispose of as we deem fit, without liability to you or anyone else.

III. Rights, Obligations and Licenses

A. Merchbar Obligations. It is our general practice to feature and sell as much Product as possible on the Platform, provided that such Products comply with the guidelines set forth herein. Notwithstanding the foregoing, Merchbar shall have complete discretion to choose which, if any, of the Products to feature and sell on the Platform. Merchbar shall collect and transmit to you or your designee only such customer information and order information as is necessary for you to perform your obligations hereunder. Merchbar shall be responsible for accepting returns from customers and will forward returned Products to you or your designee on a monthly basis.

B. Your Obligations. You shall be responsible for fulfilling all orders and shipping the Products to consumers. Products will be sold subject to a return policy as posted on the Merchbar Platform from time to time and you shall comply with such policy. You will provide Merchbar with such information as may be necessary for Merchbar to respond to customer service inquiries. You will accept returned Products from Merchbar and you will, where applicable, replace damaged or defective merchandise and send replacement merchandise to customers. You will, at the end of the Term or otherwise upon our request, delete all customer data as required by Merchbar policy or by law (including, without limitation, by the General Data Protection Regulation). You will perform these obligations in a professional, workmanlike, and timely manner. Without limiting the generality of the foregoing, you agree to ship the Products within the time period specified in the applicable order, or, if no such time is specified, a commercially reasonable amount of time, after the order was placed.

C. Merchbar Intellectual Property. We own all intellectual property and other rights, title and interest in and to the Platform, and the Services including, but not limited to, the MERCHBAR trademark, the Platform copyrights, and technologies used to provide the Services. You do not have, and will not acquire, any right, title or interest in or to any of our intellectual property except as specifically detailed in this Agreement. You have a limited, non-exclusive, revocable license to access and use the Platform in accordance with this Agreement. Merchbar is the merchant of record of all sales. Merchbar owns all consumer data and will not share such consumer data with you.

D. Your Intellectual Property. As used herein, “Content” shall mean all content of any kind included on your Store or otherwise provided by you to Merchbar, including without limitation, all Product information, Product descriptions, Product images, Product names, sizes, and inventory, all artwork, photographs, text, logos, graphics, artist name, likeness, recordings and biographies, or other content appearing on your Store or otherwise provided to Merchbar for use on the Platform. As between you and Merchbar, you own all intellectual property and other rights, title and interest in and to any Content that you upload to your Store. You are solely responsible for your Content, and we do not have, and will not acquire, any right, title or interest in or to your Content except as specifically detailed in this Agreement. By entering into this Agreement, you hereby grant us a royalty-bearing, worldwide, transferable, non-exclusive, sub-licensable right and license to use your Content in all media and sales channels, existing now or created in the future, as we deem necessary to provide the Services including, but not limited to:

allowing you to market, make available for sale, sell the Products bearing your Content; and

promoting, marketing and advertising your Content and/or Products by displaying them on the Platform, marketing them through our affiliates and distribution partners, and featuring them in magazines, television shows, and movies.

IV. Payments

A. Payment. Merchbar shall collect all payments from consumers for the sale of Products through the Platform and shall retain the applicable Merchbar Fee percentage (i.e. 15%, 18.5% or 25% depending on plan type) of the Gross Revenue, and shall remit Gross Revenue less the Merchbar Fee to you. “Gross Revenue” means the retail sales price actually received by Merchbar from the sale of one of your Products, including any shipping and handling fees, but not including sales tax collected by Merchbar.

B. Pricing. Unless otherwise agreed, the retail price for all your Products offered for sale through the Platform shall be the same as the price applicable to sales of the applicable Product through the Store directly to consumers. The price for shipping and handling for all your Products offered for sale through the Platform shall be the same as the shipping and handling charges of the applicable Product through the Store directly to Consumers, except in the case of orders made through Merchbar affiliate partners that have specific pricing requirements, in which case prices for shipping and handling charges will satisfy the specific pricing requirements required by the applicable Merchbar affiliate partner. Alternatively, in the event you do not wish to adhere to the shipping and handling prices for any specific Merchbar affiliate partner, you may opt out of distribution through such Merchbar affiliate partner.

C. Taxes. Merchbar shall collect and remit sales taxes to the relevant tax authorities on the sale of Products through the Platform. You are responsible for determining what, if any, other taxes apply to Payments you receive, for maintaining any required documentation, and for collecting, reporting and remitting taxes to the appropriate authorities.

D. Timing of Payments. As you sell Products, your share of Gross Revenues will accumulate in your Account. You will be paid by the method selected in the Payee Information section of your Account once your Account balance reaches One Hundred Dollars ($100.00 USD). Payments will be automatically pushed to you within sixty (60) days after the last day of the month during which the minimum Account balance was met.

E. Cancellation Fees. If necessary, you have 24 hours to cancel any Product order. Cancellations beyond 24 hours will incur a fee equal to $5 or 20% of the Merchbar Fee, whichever is less. Any cancellation fee will be assessed and collected from any balance accrued under your Account [or charged against your applicable payment method on file with Merchbar].

V. Content

A. Content Usage Policy. You are responsible for uploading your Content to your Store, permitting the integration of your Store into the Platform, and ensuring that your Content complies with the Content Usage Policy in Exhibit A.

We reserve the right, but do not assume the obligation, to determine whether Content complies with the Platform upload instructions, the Content Usage Policy, and this Agreement. We may remove Content that appears to be non-compliant, and withhold Payment for any Products sold bearing Content that appears to be non-compliant.

B. Costs of Creation. You are responsible for the cost of creating your Content. VI. Use of the Platform

A. Your use of the Platform must be in accordance with this Agreement, and must comply with all applicable laws, rules and regulations.

B. You may not cause any harm to, or otherwise interfere with, the Platform and/or Services by (but not limited to):

1. introducing viruses or using programs or technology intended to disrupt or damage software or hardware;

2. modifying, creating derivative works from, reverse engineering, decompiling or disassembling any technology;

3. interfering with or disrupting the access of any user, host or network via any means including, but not limited to, overloading, flooding, spamming, scripting Content creation, or linking to coupon sites;

4. creating an undue burden on the Platform;

5. collecting email addresses or other information using the Platform;

6. impersonating another person or entity;

7. using meta tags, search terms, key terms, etc. containing the word “Merchbar” or our other trademarks;

8. helping or encouraging any third party to engage in activity prohibited by this Agreement;

9. purchasing, registering, or bidding on any keywords, search terms or other identifiers including the term (or variations of) "Merchbar" (i.e. "Merchbar", "merchbar.com", etc.) for use in any search engine, portal, sponsored advertising service or other search or referral service.

C. You may not use "spam," "blast-faxes" or recorded telephone messages to promote, market or sell your Content and/or Products. You may not spam or attempt to deliberately subvert the results of our directory or search engine with false, misleading, or unnecessarily repetitive information.

VII. Representations and Warranties

A. Mutual Representations and Warranties. You represent and warrant to us, and we represent and warrant to you, that: (1) each of us has the full power and authority to enter into and perform this Agreement; (2) entering into this Agreement and performance of our obligations will not breach, and does not conflict with, any other agreement or arrangement by which we are respectively bound; and (3) each of us understands and agrees that this Agreement is a legal, valid, and binding obligation enforceable by law according to its terms and conditions.

B. Your Representations and Warranties. You represent, warrant and agree that: 1. You will maintain your Store at all times during the Term and will make all Products available for sale through the Platform which you make available for sale through your Store.

2. your use of the Platform does not infringe the rights of any third-party including, but not limited to, copyrights, trademarks, patents, trade secrets, and rights of privacy and publicity;

3. your use of the Platform does not violate any applicable laws, regulations and rules including, without limitation, exploitation of the images or likeness of minors; 4. you control your merchandise rights and have not licensed or otherwise transferred your merchandise rights to a third party merchandise company or to any other person or entity;

5. there are no pending or threatened lawsuits, claims, or demands involving, arising from or relating to your Content; and

6. your use of the Platform is and will at all times remain in full compliance with this Agreement.

VIII. Disclaimers and Exclusions

A. Modification of the Platform and/or the Services. We may modify, change, suspend or discontinue any aspect of the Platform and/or the Services at any time, with or without notice, without liability to you or anyone else.

B. We are not obligated to monitor the transactions or communications made through the Platform. However, we reserve the right to cancel any transaction, or remove or limit access to any Content, Products, or all or part of the Platform at any time with or without notice and without any liability to you or any third party.

C. DISCLAIMER OF WARRANTIES. THE PLATFORM AND THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". WE NEITHER REPRESENT NOR WARRANT THAT THE PLATFORM AND/OR THE SERVICES OR ITS OR THEIR USE: 1. WILL BE UNINTERRUPTED;

2. WILL BE FREE OF INACCURACIES OR ERRORS;

3. WILL MEET YOUR REQUIREMENTS; OR

4. WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE

WE MAKE NO REPRESENTATIONS OR WARRANTIES OTHER THAN AS EXPRESSLY MADE IN THIS AGREEMENT, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.

IX. Limitation of Liability

A. We May Use Third-Party Services. We may use third-parties to provide certain services accessible through the Platform, and will not be liable to you for their acts or omissions. B. LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH YOUR USE OF THE PLATFORM, UNDER ANY THEORY OF LIABILITY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT OF GROSS REVENUE ACTUALLY RECEIVED BY MERCHBAR DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY TO YOU IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE WILL NOT BE LIABLE FOR THE ILLEGAL, OFFENSIVE OR DEFAMATORY CONDUCT OF OTHERS, INCLUDING ANY SUCH CONDUCT BY YOU, AND THAT YOU BEAR ALL RISK AND LIABILITY ASSOCIATED WITH YOUR CONTENT.

C. RELEASE. YOU HEREBY RELEASE MERCHBAR AND ITS OWNERS, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS, SUBSIDIARIES, SHAREHOLDERS, EMPLOYEES AND BUSINESS PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF THE PLATFORM AND/OR THE SERVICES. IF YOU ARE A RESIDENT OF CALIFORNIA, YOU WAIVE CALIFORNIA CIVIL CODE § 1542 WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

X. Indemnification

You hereby agree to indemnify and hold Merchbar and its owners, shareholders, directors, officers, managers, employees, representatives, agents, subsidiaries, affiliates, successors, business partners and assigns (the "Releasees") harmless from and against any and all damages, losses, costs or expenses (including, without limitation, attorneys' fees and costs at trial and on appeal) incurred in connection with any third-party suit, claim, demand or action brought against any of the Releasees arising from or relating to your use of the Platform, the Services, your Content, or your breach of this Agreement (individually and collectively a “Claim”). Merchbar has the right to control the defense, settlement, and resolution of any Claim, at your sole cost and expense. In no event may you settle or otherwise resolve any Claim without our express written permission. We may withhold any and all Payments due to you in enforcing your indemnification obligations.

XI. Governing Law

A. Notices. All notices under this Agreement must be in writing and delivered as follows:

If to Merchbar:

Merchbar, Inc.

182 Howard Street

Suite 212

San Francisco, CA 94105-1611

If to you:

Using your most recent Account contact information.

Notices must be made, and will be considered received, as follows: (i) by U.S. mail, seven (7) business days after deposit in a mailbox, (ii) by overnight courier, on the date receipt is confirmed by the courier service, or (iii) by electronic mail, upon receipt of a “read receipt”.

You or we may update the address for Notices set forth in this section by electronic e-mail, upon receipt of a “read receipt”.

B. Applicable law, Jurisdiction, and Venue.

This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflict of laws provisions thereof.  All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the Borough of Manhattan, New York City, New York.  To that end, each party irrevocably consents to the exclusive jurisdiction of, and venue in, such courts, and waives any (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such party.

C. Assignment and Transferability. You may not assign or otherwise transfer this Agreement.

D. Class Action Waiver.

THIS PROVISION PRECLUDES YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST MERCHBAR. IT ALSO PRECLUDES YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST MERCHBAR BY SOMEONE ELSE.

YOU AND MERCHBAR AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS.

 

E. Entire Agreement. This Agreement contains our entire understanding and agreement regarding your use of the Platform and supersedes any and all prior agreements and understandings regarding its subject matter. No failure or delay by either of us in exercising any right, power or privilege under this Agreement will operate as a waiver of that right, power or privilege, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. We are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect.

F. Survival. Section II. C and D Section III, Section V. A, Section VI, Section VII, Section VIII, Section IX, Section X, and Section XI of the General Terms and Conditions of this Agreement survive any suspension, limitation of access to, termination, removal of Content or ban on your use of the Platform and/or Services.

Exhibit A

Content Usage Policy

Our Content Usage Policy (CUP) establishes guidelines for the use of Content on the Platform and/or the Services. Your use of the Platform and/or Services constitutes your agreement that everything you upload, store, or use on your Store or otherwise furnish to Merchbar complies with this CUP, and you accept liability for any non-compliant Content.

If you believe that any images on the Platform or offered through the Services infringe your intellectual property rights, notify us at trademark@Merchbar.com. If you are not a rightsholder, but believe that images on the Platform violate this CUP, please email us at trademark@Merchbar.com.

I. Prohibited Images

All Content used on Platform will be evaluated against our CUP.

Below are some general examples of prohibited Content. Although Merchbar has the right and authority, in its sole and absolute discretion, to remove any Content on the Platform which Merchbar believes violates this CUP, you are always fully responsible for all Content that you make available to the Platform via your Store or otherwise.

A. General Categories of Prohibited Content

Content is prohibited on the Platform if it:

may infringe the intellectual property or other rights of a third party, including rights of privacy and personality;

makes inappropriate use of swastikas or other Nazi symbols and/or glamorizes the actions of Hitler or other individuals or groups advocating ethnic cleansing, genocide or similar activities;

uses symbols or marks signifying hate towards another group of people; contains or consists of hateful and/or racist terms;

is pornographic;

nudity is prohibited on the Platform;

exploits images of, or the likeness of, minors;

reveals the personal information of another person;

contains or consists of obscenities, vulgarities, and/or offensive remarks that harass, threaten, defame or abuse others such as F*** (Ethnic Group);

depicts violence, is obscene, abusive, fraudulent or threatening such as an image of a murder victim, morgue shots, promotion of suicide, etc.;

depicts or glamorizes the use of "hard core" illegal substances or drugs such as a person injecting a substance in their body;

is obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, generally offensive or in bad taste, as determined by Merchbar; or is otherwise prohibited by applicable law.

The list above is NOT exhaustive, and only serves as a general guideline.

AN IMPORTANT NOTE ABOUT TOLERANCE IN A DIVERSE WORLD: Merchbar has millions of users, from varied backgrounds and cultures, who differ in their beliefs and views about what is considered acceptable and what is considered offensive. We recognize that along with such diversity comes differences which may result in some individuals being offended by the opinions, perspectives and creative expressions of others within our user group. We ask that you exercise tolerance, and respect each individual's right to express him- or herself in a manner consistent with our CUP.

All Content that you upload is automatically stored to the Platform. We do not review any Content before you upload it to the Platform. By using our Services, you assume full responsibility for all of the Content that you upload to the Platform, and for complying with our CUP.

B. Examples of Content Prohibited Under Intellectual Property Laws

Following are some examples of Content and Products that should not be made available on your Store or otherwise made available to Merchbar:

NO unofficial merchandise, such as Content relating to professional sports teams, video games, or Olympic merchandise.

NO unauthorized use of names, logos, pictures or other intellectual property of musical groups or musical artists. For example, you cannot make merchandise depicting a musical group or artist simply because you run a fan-based website for that group or artist or just because you downloaded his/her/their image from an internet website. You also cannot modify the name of or other intellectual property relating to these individuals and avoid infringement.

NO unauthorized use of names, logos, pictures, or other intellectual property of sports teams, colleges/universities, clubs, or organizations. Modifications may not avoid infringement.

NO unauthorized use of photos, logos, caricatures, or other artwork depicting actors, actresses, models or other celebrities. Just because you take a photograph of a celebrity does not necessarily give you the right to use that photograph on merchandise, even if you digitally manipulate the photograph. However, Content depicting political figures is permissible if used to promote political free speech (and not to endorse products). A political figure is usually a person holding or seeking political office. While certain celebrities are sometimes active in politics, Merchbar does not allow use of content depicting celebrities in any manner unless expressly authorized by that person.

NO unauthorized use of trademarks, names, or logos of companies. For example, you cannot use the name of a company or company logo. However, Content depicting political parties is permissible if used to promote political free speech, and the Content does not otherwise use or depict other trademarks, names, or logos.

NO unauthorized use of pictures or photographs of products (such as toys). Even if you own a product, intellectual property laws may still prohibit you from selling merchandise

that features pictures of it. For example, you cannot take a picture of your famous doll and sell merchandise for that famous doll with that picture.

This list is NOT comprehensive. If in doubt, you should consult with an attorney.

 

II. Marketing Restrictions

A. False or Misleading Marketing Material

You may not use false or misleading Content to market and promote your Content or Products. Some examples of false and misleading information are:

Making claims that the proceeds from sales will go to a charity without first obtaining permission from such charity to use their name in connection with product sales, and complying with all applicable laws relating to charity fundraising;

Using a third party trademark to market your content (e.g. using "Gucci"® in your product descriptions, titles, tags or other SEO text on your Merchbar shop); and

Spamming or attempting to deliberately subvert the results of the Merchbar directory or search engine with false, misleading, or unnecessarily repetitive information (e.g., tag spamming or artificially increasing your Merchbar search results rankings).

 

 

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