Term of services
By signing up with Merchmake and creating a store powered by Merchmake (“Service”) or any of the services of Merchmake, you are agreeing to be bound by the following terms and conditions (“Terms of Service”). The Services included in the Merchmake platform under the Terms of Service include various products and services to facilitate custom creation of on-demand products, publishing these products to a dedicated ecommerce store powered by Merchmake, and routing orders to fulfillment vendors. Any new features or tools which are added to the current Merchmake Platform shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at https://evolution.merchmake.com/terms-and-conditions.
Merchmake reserves the right to update and change the Terms of Service by posting updates and changes to the Merchmake website. You are advised to check the Terms of Service from time to time for any updates or changes that may impact you.
You must read, agree with, and accept all of the terms and conditions contained in this Terms of Service agreement, including Merchmake’s Acceptable Use Policy (“AUP”) and before you may become a Merchmake user.
1. Account Terms
1.1 You acknowledge that Merchmake will use the email address you provide as the primary method for communication.
1.2 You are responsible for keeping your password secure. Merchmake cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password.
1.3 You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with your Account (“Materials”).
1.4 A breach or violation of any term in the Terms of Service, including the AUP, as determined in the sole discretion of Merchmake will result in an immediate termination of your services.
2. Account Activation
2.1 If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
3. General Conditions
3.1 You must read, agree with, and accept all of the terms and conditions contained in these Terms of Service, including the Acceptable Use Policy (“AUP”) and the Privacy Policy before you may become user of the Merchmake platform.
3.2 The Terms of Service shall be governed by and interpreted in accordance with the laws of the State of Kentucky applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Kentucky with respect to any dispute or claim arising out of or in connection with the Terms of Service.
3.3 You acknowledge and agree that Merchmake may amend these Terms of Service at any time by posting the relevant amended and restated Terms of Service on the Merchmake website and such amendments to the Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Terms of Service are posted to the Merchmake website constitutes your agreement to, and acceptance of, the amended Terms of Service. If you do not agree to any changes to the Terms of Service, you must notify Merchmake and, if necessary, enact termination of Agreement.
3.4 You may not use the Merchmake platform for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws), the laws applicable to you in your customer’s jurisdiction, or the laws of the State of Kentucky or any Federal Laws of the United States. You will comply with all applicable laws, rules and regulations in your use of the Service.
3.5 You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Merchmake.
3.6 You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Merchmake trademarks and/or variations and misspellings thereof.
3.7 Questions about the Terms of Service should be sent to [email protected].
3.8 You understand that your Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
3.9 You acknowledge and agree that your use of the Service, including information transmitted to or stored by Merchmake on the Merchmake platform, is governed by its privacy policy at https://evolution.merchmake.com/privacy-policy.
4. Merchmake Rights
4.1 We reserve the right to modify or terminate the Service for any reason, with notice according to the terms of the Agreement.
4.2 We reserve the right to refuse service to anyone for any reason at any time.
4.3 We may, but have no obligation to, remove Materials and suspend or terminate Accounts if we determine in our sole discretion that the goods or services offered on your Merchmake store, or the Materials uploaded or posted to your Merchmake store, violate our Acceptable Use Policy (“AUP”) at https://evolution.merchmake.com/acceptable-usage-policy or these Terms of Service.
4.4 Verbal or written abuse of any kind (including threats of abuse or retribution) of any Merchmake customer, Merchmake employee, member, or officer will result in immediate Account termination.
4.5 Merchmake does not pre-screen Materials and it is in our sole discretion to refuse or remove any Materials from the Service.
4.6 In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
4.7 Merchmake retains the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account owner, Merchmake reserves the right to temporarily disable an Account until resolution has been determined between the disputing parties.
5. Limitation of Liability
5.1 You expressly understand and agree that Merchmake shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses resulting from the use of or inability to use the service.
5.2 In no event shall Merchmake or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with your Merchmake store, our services or these Terms of Service (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Merchmake partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents it incorporates by reference (including the AUP), or your violation of any law or the rights of a third party.
5.3 Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory.
5.4 Merchmake does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
5.5 Merchmake does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
5.6 Merchmake does not warrant that the quality of any products, services, information, or other Materials purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
6. Waiver and Complete Agreement
6.1 The failure of Merchmake to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service and the documents it incorporates by reference constitute the entire agreement between you and Merchmake and govern your use of the Service, superseding any prior agreements between you and Merchmake (including, but not limited to, any prior versions of the Terms of Service).
7. Intellectual Property and Customer Content
7.1 We do not claim any intellectual property rights over the Materials you post to your Merchmake store. All Materials you or your customers upload remains yours. You can remove your Merchmake store at any time by requesting that your Account be deleted.
7.2 By uploading Materials or allowing others to upload materials, you agree: (a) to allow other internet users to view the Materials you post publicly to your Merchmake store; (b) to allow Merchmake to store, and in the case of Materials you post publicly, display, your Materials; and (c) that Merchmake can, at any time, review all the Materials submitted to its Service, although Merchmake is not obligated to do so.
7.3 You retain ownership over all Materials that you publish publicly; however, by making them public, you agree to allow others to view Materials that you post publicly. You are responsible for compliance of the Materials with any applicable laws or regulations.
7.4 We will not disclose your confidential information to third parties, except as required in the course of providing our services. Confidential information includes any Materials or information provided by you to us which is not publicly known. Confidential information does not include information that: (a) was in the public domain at the time we received it; (b) comes into the public domain after we received it through no fault of ours; (c) we received from someone other than you without breach of our or their confidentiality obligations; or (d) we are required by law to disclose.
7.5 Merchmake shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store to promote the Service.
7.6 You may cancel your Account at any time by emailing [email protected] and then following the specific instructions indicated to you in Merchmake’s response.
8. Upon termination of the Services by either party for any reason:
8.1 Merchmake will cease providing you with the Services and you will no longer be able to access your Account;
8.2 Unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
8.3 Any outstanding balance owed to Merchmake for your use of the Services through the effective date of such termination will immediately become due and payable in full;
8.4 Your Services will be taken offline.
8.5 If at the date of termination of the Service, there are any outstanding fees owing by you, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.
8.6 We reserve the right to modify or terminate the Merchmake Service or your Account for any reason, without notice according to the Agreement.
8.7 Fraud: Without limiting any other remedies, Merchmake may suspend or terminate your Account if we suspect that you (by conviction, settlement, insurance, or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
9. Third Party Services
9.1 In addition to these Terms of Service, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by Merchmake’s partners or other third parties.
9.2 Merchmake may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including via the Merchmake App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or Merchmake’s website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them.
9.3 We do not provide any warranties with respect to Third Party Services. You acknowledge that Merchmake has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on Merchmake’s websites, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Merchmake or the Merchmake platform.
9.4 If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. Merchmake is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials.
9.5 Under no circumstances shall Merchmake be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary, or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider, including any Expert. These limitations shall apply even if Merchmake has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
9.6 You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Merchmake partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
10. DMCA Notice and Takedown Procedure
10.1 Merchmake supports the protection of intellectual property and asks Merchmake merchants to do the same. It is our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a Digital Millennium Copyright Act Notice (“DMCA Notice”) to Merchmake’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the Materials claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material.