These Terms of Service ("Terms") govern your access to and use of our websites including sacatelle.com, merch.com, app.merch.com, as well as any third-party apps published by Merch.com or Sacatelle Holdings LLC (e.g., Shopify app, Zapier integrations), the Platform, and Services provided by Sacatelle Holdings LLC, a Delaware Limited Liability Company with its principal place of business at 5632 W Washington Blvd, Los Angeles, CA 90016 ("Provider", "we", "us", or "our"). By accessing the Platform, using the Services, placing an order, or otherwise doing business with us (including continuing to use our Services after any updates to these Terms), you ("Client", "you", or "your") agree to be bound by these Terms, effective as of the date of your first such access or use ("Effective Date"). If you do not agree, do not access or use the Platform or Services.
ACCEPTANCE:
By registering for an account, accessing the Platform, placing an order, using the Services, or continuing to do business with us, you acknowledge that you have read, understood, and agree to these Terms, including all incorporated documents (e.g., the DPA). If you are acting on behalf of a company or entity, you represent that you have authority to bind that entity. BY USING THE PLATFORM OR SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THESE TERMS. These Terms may be accepted electronically, and your use constitutes electronic acceptance equivalent to a signature.
1. DEFINITIONS:
"Terms" means these Terms of Service, and any addenda, amendments, exhibits, schedules, Statements of Work, or specifications attached or incorporated by reference. The Terms include the Data Processing Addendum (DPA), incorporated by reference as Exhibit A and available at merch.com/dpa.
"Acceptance Date" means the earlier of (a) the date you expressly accept delivery of the Products in writing, or (b) the last day of the Inspection Period if you have not provided written notice of any Defects or nonconformities in accordance with Section 4.1.
"Campaigns" means customizable sets of rules created on the Platform to manage order processing, fulfillment, and related workflows based on your specific use cases.
"Confidential Information" means the proprietary information exchanged between you and us, which includes, without limitation, information (tangible or intangible) regarding a party's technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information, which is (i) marked "confidential" or "proprietary" at the time of disclosure by the disclosing party; or (ii) by its nature or content is reasonably distinguishable as confidential or proprietary to the receiving party.
"Defect" means a deviation from the published specifications of the Products, or a failure of the Products to meet all required acceptance criteria and testing during the Inspection Period.
"Documentation" means the user and/or operations manuals, specifications, and any other written materials (whether physical or electronic) provided by us in connection with the Platform, Products, or Services, and any addenda, amendments, updates, corrections, and supplements thereto.
"Fulfillment Order" means any order processed, prepared, and shipped by us on behalf of you, including to third-party recipients or directly to you.
"Innovations" means all inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, technical and business plans, specifications, hardware, circuits, computer languages, computer programs, databases, user interfaces, encoding techniques, and other materials or innovations of any kind that we may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing Services or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection.
"Intellectual Property Rights" means all right, title and interest in and to the Innovations, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights.
"Inspection Period" means the fifteen (15) day period immediately following delivery of the Products to you.
"Moral Rights" means any rights to claim authorship of any Innovation, to object to or prevent the modification or destruction of any Innovation, to withdraw from circulation or control the publication or distribution of any Innovation, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a "moral right."
"Platform" means our proprietary online platform, accessible via merch.com, app.merch.com, sacatelle.com, or other designated portals (including integrated partner platforms for specific Services like POD and third-party apps published by us such as Shopify or Zapier integrations), which enables you to manage designs, place orders for Products, assign warehouses, arrange shipments (including direct shipments to you), create Campaigns, access API integrations (subject to Subscription Level), utilize integrations such as Zapier and the Shopify app, and manage other features as may be updated or expanded by us from time to time.
"Products" means the items identified in your orders placed through the Platform or pursuant to a Sales Order or Statement of Work.
"Related Rights" means we own or control (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights, which we own and that block or interfere with the rights granted to you under these Terms.
"Sales Order" means your written or electronic order to us to purchase Products or Services, which may include (but is not limited to) Product descriptions, quantities, delivery dates, and shipment methods.
"Services" means the services provided by us, including but not limited to access to and use of the Platform, fulfillment services (including order processing, picking, packing, and shipping), storage, print-on-demand, API access, integrations, and any other services specified in a Statement of Work or ordered through the Platform.
"Statement of Work" or "SOW" means a document describing specific Services to be performed by us, including any work product to be delivered, and executed by the parties. The parties may add Services under these Terms by executing additional Statements of Work.
"Subscription Level" means the tier of access to the Platform selected by you, including Essentials, Professional, or Enterprise, each with varying features such as API access, integration capabilities, and support levels, as described in the published documentation on merch.com or as agreed in a Statement of Work.
"Warranty Period" means the predetermined period of time, starting from the Acceptance Date, during which we warrant the Products to be free of Defects and compliant with the Documentation.
2. PLATFORM ACCESS AND SERVICES:
2.1. Platform Access. Subject to your compliance with these Terms, including payment of applicable fees, we grant you a non-exclusive, non-transferable, revocable license to access and use the Platform during the Term for your internal business purposes. You may use the Platform to manage designs, place orders for Products, assign warehouses, arrange direct shipments to you, create Campaigns, and access other features available under your Subscription Level. API access and certain integrations (e.g., Zapier, Shopify app) are available only for eligible Subscription Levels, as detailed in the Documentation. We may develop and release additional integrations or features. We may subcontract any aspect of Platform development, maintenance, or operation to third parties, including but not limited to software development, hosting, or technical support, without your consent, which will be subject to the terms of these Terms and any applicable fees. We reserve the right to revoke or suspend this license at any time, in our sole discretion, including but not limited to for non-payment, suspected breach, maintenance, security concerns, or any other reason, without liability to you.
2.1.1. Account, Password and Security. You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Platform or Services. We will not be liable for any loss or damage arising from your failure to comply with this section.
2.1.2. Usage Restrictions. In addition to other restrictions herein, you may not:
(a) publish, upload, post, transmit, or otherwise make available to the Platform any content that (i) is unlawful or tortious, harassing, libelous or defamatory, obscene, threatening, harmful to minors in any way, abusive, or contain expressions of hatred, bigotry, racism or pornography, or are otherwise objectionable, or that would constitute or encourage a criminal offense, or (ii) you do not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that knowingly infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person or entity;
(b) upload, post, transmit, or otherwise make available any content or information knowingly designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
2.2. Subscriptions. You may select a Subscription Level for Platform access. Subscription fees are based on published rates available on merch.com or as negotiated and set forth in a Statement of Work. Subscriptions are billed in advance on a monthly or annual basis, as selected by you. If you provide a payment method on file, we are authorized to automatically charge such payment method for subscription fees in accordance with the subscription terms. We may, at our sole discretion, update, create new, rename, or modify Subscription Levels, features, or published rates (including pricing structures) at any time, with changes effective at the start of the next billing cycle or as otherwise specified. Continued use of the Platform after notice constitutes acceptance of such changes. All subscription fees are non-refundable, and no credits or refunds will be provided for any periods of suspension, revocation, downtime, or non-use, regardless of the reason.
2.3. Fulfillment and Storage Services. We will provide fulfillment services for Fulfillment Orders placed through the Platform or pursuant to a Sales Order or Statement of Work, including order processing, picking, packing, and shipping. Fulfillment fees include base fulfillment rates plus pick rates per item, as published on merch.com or negotiated in a Statement of Work. Storage services are charged per item per day, with rates published on the relevant product detail page in your account or available upon request from your account manager or as negotiated in a Statement of Work. Storage fees are calculated monthly based on the average quantity and days in storage for each SKU, as detailed on the monthly invoice. We reserve the right to request alternative storage arrangements for your inventory upon thirty (30) days' written notice, and failure to comply may result in disposal at our discretion without liability. Upon notice to you, we may require you to take physical possession of Inactive Inventory within thirty (30) days notice, unless otherwise mutually agreed by the parties in writing. "Inactive Inventory" is defined as those Products or third-party products that we hold in storage for you that we received 6 months or more prior and you are not continuing the payment of storage fees. In the event that we require you to take physical possession of your products held in storage, we will require you to provide an address for delivery and pay any additional fees including shipping. If no address is provided by you, we reserve the right to destroy, donate or discard of, any Inactive Inventory that remains unclaimed after such period. We may, in our sole discretion, reject, refuse, or dispose of any Products that do not comply with published specifications or applicable laws, without liability or refund to you. For dropshipping orders (Fulfillment Orders processed and shipped directly to end users), fulfillment fees and pick rates include standard packaging, order processing fees, carrier fees, and labeling. These fees do not include VAT, tariffs, or duties applicable to exports or imports, which are the responsibility of the end-user recipient unless negotiated otherwise in a Statement of Work or prepaid by you on behalf of the recipient. If a shipment is directed to one of our warehouses or warehousing partners, we accept the goods on your behalf, and you waive any right to reject the goods upon receipt by the warehouse or warehousing partner.
2.3.1. Products. The Platform and Services may make available listings, descriptions and images of Products. Such Products may be made available by us or by third parties. The availability through the Platform of any listing, description or image of any Product does not imply an endorsement of such Product or an affiliation with the manufacturer or provider of such Product. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. We reserve the right, including without prior notice to you, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, credit or similar promotion; to bar any user from completing an order; to cancel any order even after it has been placed through the Platform and to refuse to provide any user with any Product, subject to any applicable laws. You agree that you will not resell any Products or Services obtained through us, unless we have provided our express prior written consent for you to do so. You agree to take full responsibility for the selection and use of any Products you purchase on behalf of yourself or others including the determination of whether such Products are appropriate for the recipient, and except as provided herein, we shall not be liable to you or the recipient for any damages in connection with the use of any Products.
2.4. Print-on-Demand Services. If applicable, we may provide print-on-demand (POD) services through the Platform or via partner platforms integrated or designated by us, subject to published rates on merch.com or negotiated rates in a Statement of Work. You may mark up prices for end-customer sales, with net profits issued as credits. We may charge monthly fees for operating a POD store, based on factors such as store type, number of products, or other criteria, as published on merch.com or specified in a Statement of Work. Setup charges may apply for each SKU added to the POD store, with rates published on merch.com or agreed in a Statement of Work. Any fees (including monthly or setup charges) may be introduced or modified by us upon notice, with continued use constituting acceptance. We reserve the right to modify or terminate POD terms with reasonable notice. We may subcontract any aspect of print-on-demand services, including production, printing, or distribution, to third parties without your consent.
2.5. Delivery and Shipment. Unless otherwise stated in a Sales Order or Statement of Work, we shall use commercially reasonable efforts to process and ship Fulfillment Orders in accordance with published timelines. Shipment methods (e.g., air, courier, ocean) and terms (e.g., DDP) will be as specified in the order or Statement of Work. Title to Products passes to you upon delivery, and we warrant clear title free from liens. We shall not be liable for any delays, losses, or damages during shipment, and risk of loss remains with you upon handover to carrier.
2.5.1. Duties, Taxes, and Import Charges. Unless otherwise expressly agreed in a Statement of Work or Sales Order, you are solely responsible for all duties, taxes, customs charges, import fees, GST, VAT, brokerage charges, and similar governmental assessments arising from the shipment of Products to you or to your end customers, regardless of shipment method or incoterms. By default, where commercially feasible, we will ship on a Delivered Duty Paid (DDP) or equivalent basis, and you authorize us to pay such duties, taxes, and related import charges on your behalf and to invoice you for those amounts or charge your payment method on file. You are responsible for charging or recovering such amounts from your end customers as you see fit. We are not responsible for any failure by you to charge or recover such amounts from your end customers, nor for any discrepancies between amounts collected by you and amounts ultimately charged to you for duties, taxes, or related import charges. Where DDP is not available or not selected, the applicable incoterms will govern which party is responsible for duties and taxes, and in no event will we be liable for duties, taxes, or import charges that are, by law or by incoterms, the responsibility of you or your end customer.
2.5.2. Ecommerce and Shopify Shipping Settings. From time to time, we may provide suggestions or example settings for shipping methods, shipping rates, or fulfillment rules for use in your ecommerce or Shopify store or other platforms. These suggestions are provided solely as a convenience. The configuration, review, and final approval of all shipping rates, methods, and rules on your ecommerce, Shopify, or other third-party platforms are solely your responsibility. We do not warrant that any suggested configuration will match our actual fulfillment, carrier, or shipping charges, and we will not be liable for any differences between the amounts you charge your end customers and the amounts we charge you for fulfillment, shipping, or related services. You are responsible for reviewing and confirming all shipping configurations on your own systems.
2.5.3. Delivery Dates and Delays. Any production, shipping, or delivery dates or timelines that we provide, whether in a Sales Order, Statement of Work, or otherwise, are estimates only and are not guaranteed. While we will use commercially reasonable efforts to meet requested in-hands dates, you acknowledge that production schedules, carrier performance, customs clearance, weather conditions, and other logistics factors are outside of our direct control. Late delivery or failure to meet a requested in-hands date, by itself, does not give you the right to reject the Products, cancel the order, refuse payment, or demand a refund, replacement, or credit, so long as the Products themselves conform to the applicable specifications and are not Defective under Section 4. Any accommodations or concessions related to late delivery will be at our sole discretion.
2.6. Non-Exclusivity. These Terms are non-exclusive; you may engage other providers for similar services, and we may provide services to others.
2.7. Order of Precedence. In the event of a conflict between these Terms and any Statement of Work, Sales Order, invoice generated by us, or Platform terms, the Statement of Work, Sales Order, or our invoice shall control with respect to that specific engagement only; provided, however, that terms in these Terms regarding limitations of liability, indemnification, representations and warranties, confidentiality, and governing law shall always control. In conflicts involving Personal Data Processing, the DPA prevails. For the avoidance of doubt, any purchase order ("PO") or similar document submitted by you shall not override, change, or add to these Terms, and any such PO terms that contradict, add to, or modify these Terms, the DPA, any Statement of Work, Sales Order, or our invoice are invalid and not binding on us, even if we accept the PO or proceed with the order. Superseding or additional terms must be explicitly agreed to by us in a Statement of Work, Sales Order, or invoice generated by us. Our acceptance of a PO does not deem us liable for or bound by any added, modified, or contradictory terms in the PO, and you agree that these Terms prevail over any PO language unless explicitly agreed to by us in writing.
2.8. Ownership of Intellectual Property Rights. You grant us a perpetual, irrevocable, royalty-free, worldwide license to collect, use, store, process, and analyze any data derived from your use of the Platform or Services, including but not limited to order information, customer data, and usage patterns, in anonymized or aggregated form, for our business purposes, including Platform improvement, analytics, marketing, and development of new services or products. You also grant us a non-exclusive, perpetual, irrevocable, royalty-free license to use any identifiable order data (e.g., customer names, addresses, order details) solely to perform Services under these Terms, and in anonymized or aggregated form for any lawful purpose, provided such use complies with applicable privacy laws. By using the Services, you grant us a non-exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, or service improvements provided by you pertaining to the Services.
2.8.1. Copyright Complaints. We respect the copyright and intellectual property interests of others. It is our policy not to permit materials known by us to infringe another party's copyright to remain on the Platform. If you believe that an infringement of intellectual property rights exists, please provide us with notice of the same to [email protected]. If you believe there is or has been a copyright infringement, you should provide us with written notice that contains the following information required by the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(d) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an email address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2.9. Suspension of Services. We may suspend your access to the Platform or any Services immediately and without prior notice if: (a) you fail to pay any fees when due; (b) we reasonably suspect you are in breach of these Terms; (c) continued access poses a security risk, legal liability, or harm to us or third parties; (d) for scheduled or unscheduled maintenance; or (e) for any other reason in our sole discretion. During any suspension, you remain responsible for all fees and charges, and no credits, refunds, or proration will be provided for the period of suspension. Suspension does not relieve you of your obligations under these Terms.
3. PAYMENT TERMS:
3.1. Fees and Invoicing. You shall pay all fees for Platform access, Subscriptions, Services, fulfillment, storage, and Products in accordance with published rates on merch.com or as negotiated in a Statement of Work or Sales Order. Fees are exclusive of taxes, which you shall pay unless an exemption certificate is provided. Invoices for storage, fulfillment, and other Services are generated monthly and due per the terms on your account (e.g., due on receipt or net terms). Subscription fees are charged automatically if a payment method is on file. By providing a payment method, you authorize us to charge it for all fees in accordance with these Terms. Credit card payments are subject to a 3% processing fee. All fees are non-refundable, and you are responsible for payment of all fees regardless of any suspension, revocation, downtime, or non-use of the Platform or Services.
3.2. Taxes and Withholdings. Fees are exclusive of transaction taxes; you shall pay such taxes as invoiced. If you are required by law to withhold any taxes from payments to us, you shall gross up such payments so that we receive the full amount of Fees as if no such withholding had been made. You shall provide documentation evidencing payment of the withheld taxes to the relevant authority.
3.3. Late Payments. Overdue amounts accrue interest at 1.5% per month or the maximum legal rate, whichever is lower. We may suspend Services or terminate these Terms for non-payment without further notice, and you shall be responsible for all costs of collection, including reasonable attorneys' fees.
3.4. No Refunds or Credits. Except as expressly provided herein, all payments are non-refundable. No refunds or credits will be issued for partial periods of service, plan downgrades, unused features, suspensions, revocations, or terminations.
3.5. No Setoff. You shall pay all amounts due under these Terms in full without any setoff, recoupment, counterclaim, deduction, or withholding of any kind, except as may be required by applicable law. Any amounts you dispute in good faith must be identified in writing within thirty (30) days of the invoice date, and you shall timely pay all undisputed amounts while the parties work in good faith to resolve the disputed portion.
4. INSPECTION; REJECTION; DEFECTS:
4.1. Inspection and Acceptance. You shall carefully inspect all Products upon delivery and at your own cost. You have fifteen (15) days from the date of delivery (the "Inspection Period") to notify us in writing of any alleged Defects or nonconformities. Your notice must reasonably describe the alleged Defects. Failure to provide such written notice within the Inspection Period constitutes full and final, irrevocable acceptance of the Products as delivered and a waiver of any and all claims relating to Defects, nonconformities, workmanship, or quality for those Products.
4.2. Verification and Returns. Upon receiving your timely notice, we shall have a reasonable opportunity to inspect and verify the alleged Defects, which may include requesting samples, photographs, or other documentation. If we confirm that the Products are Defective, we will issue return instructions or a Return Material Authorization and will bear the reasonable, documented cost of return shipping for the Defective units in accordance with our instructions. As further described in Section 4.4, you are responsible for all other costs associated with handling the Products and making them available for pickup or return.
4.3. Sole and Exclusive Remedies for Defects. For any Product that we confirm to be Defective, our sole and exclusive obligations, and your sole and exclusive remedies, are limited to the following, at our option:
(a) repair the Defective Products; or
(b) replace only the Defective Products with conforming Products within a commercially reasonable period; or
(c) if repair or replacement is not commercially reasonable in our discretion, issue a refund or credit solely for the specific units proven to be Defective.
We have the right to attempt repair or replacement first. A refund or credit is only available if we determine that repair or replacement is not commercially reasonable or technically feasible. These remedies are exclusive, even in the event of negligence or alleged breach, and no other remedies shall apply under any theory of liability.
4.4. Scope of Responsibility; No Ancillary Cost Reimbursement. Our responsibility for Defects is strictly limited to the Products themselves and to the remedies described in Section 4.3. For the avoidance of doubt, subjective preferences regarding "look," "feel," or other aesthetic opinions do not constitute Defects unless expressly defined as acceptance criteria in an applicable Statement of Work or Specification. Defects must be objectively demonstrable and must materially affect the use or intended function of the Product.
We are not responsible for, and will not reimburse, any of your internal or third-party costs or expenses associated with the handling or use of the Products, including without limitation receiving, unboxing, warehousing or storage costs, internal inspection or quality control costs, repacking, relabeling, fulfillment operations, lost productivity, or similar business or operational costs, even if the Products are later determined to be Defective. Our responsibility ends with repair, replacement, refund, or credit of the Products themselves in accordance with this Section 4. The limitations and exclusions in this Section 4.4 apply even if any remedy in these Terms fails of its essential purpose and even in the event of negligence, strict liability, or alleged breach.
5. CHANGES; DELAYS; CLIENT MATERIALS:
5.1. Changes. You may request changes to orders or Statements of Work in writing; we will notify of any cost or timeline impacts, and changes require mutual agreement. We may change any aspect of the Services, Platform, fees, or pricing structures at any time upon notice, with your continued use constituting acceptance.
5.2. Delays. We shall notify you of any delays and propose alternatives. We shall not be liable for delays caused by you or third parties.
5.3. Client Materials. Any materials provided by you remain your property and shall be used solely for these Terms, returned or destroyed upon request. You warrant that such materials do not infringe third-party rights and indemnify us accordingly.
6. CONFIDENTIAL INFORMATION:
6.1. Obligations. Each of you and us shall hold Confidential Information in confidence for three (3) years post-termination, using reasonable care to protect it and disclosing only to need-to-know parties under similar protections. Prompt notice of breaches is required.
6.2. Exclusions. Exclusions include public information, independently developed data, or legally required disclosures (with notice to the other where possible).
7. WARRANTIES:
7.1. Product Warranty; Exclusive Nature. We warrant that, during the Warranty Period, the Products will be free from defects in materials and workmanship, subject to a reasonable tolerance of up to two percent (2%) unless otherwise specified in a Statement of Work or Sales Order. For any Product that does not conform to this warranty and is timely reported in accordance with Section 4, your sole and exclusive remedies are those set out in Section 4.3 (repair, replacement, or refund/credit for the specific Defective units only), at our sole discretion.
The warranties and remedies in this Section 7 are limited, exclusive, and are strictly subject to the limitations of liability set out in Section 9. No other warranties or remedies of any kind shall apply to the Products.
7.2. We pass through manufacturer warranties.
7.3. Disclaimer. Except as provided herein, services, the Platform, and Products are provided "AS IS" without implied warranties, including merchantability or fitness for a particular purpose. We do not warrant uninterrupted or error-free operation, accuracy of results, or achievement of business outcomes.
7.4. You represent and warrant that in using the Services, including sending Products or Fulfillment Orders to end users or customers, you comply with all applicable laws regarding solicitation, marketing, consent, and communications, and that such actions will not violate any third-party rights or laws. You further represent and warrant that your use of the Services, including any shipments or exports, complies with all applicable export control laws (e.g., U.S. Export Administration Regulations), and you will not export restricted items without required licenses. You indemnify us for any violations. You further represent and warrant that no Products or Fulfillment Orders involve hazardous, restricted, or prohibited materials under applicable laws or carrier rules (e.g., UPS, USPS, FedEx guidelines on batteries, chemicals, or weapons), and that you comply with all shipping/export regulations. You indemnify us for any claims, fines, or damages arising from violations.
7.5. Data Privacy and Security. We shall process personal data (as defined under applicable laws, including GDPR, UK GDPR, CCPA, and equivalents in Asia) in accordance with the Data Processing Addendum (DPA), incorporated as Exhibit A to these Terms and available at merch.com/dpa for reference. We maintain reasonable security measures, but you are responsible for obtaining necessary consents and complying with privacy laws for data you provide (e.g., customer information from EU/UK/Asia). We shall not be liable for your non-compliance.
7.6. AI Features. If we incorporate artificial intelligence or machine learning features into the Platform or Services in the future, such features are provided "AS IS" without warranties of accuracy, non-infringement, or fitness. You assume all risks for reliance on AI-generated outputs (e.g., recommendations, content). We may add, modify, or remove AI features upon notice, with continued use constituting acceptance. You indemnify us for claims arising from your use of AI features.
8. INDEMNIFICATION:
8.1. By You. You shall indemnify, defend, and hold us harmless from third-party claims arising from: (a) your acts/omissions; (b) infringement due to your-provided intellectual property or materials; (c) your breach of confidentiality or warranties; (d) any Products or content provided by you; (e) your use of the Platform or Services, or (f) any violations or alleged violations of laws regarding solicitation, marketing, or communications (including but not limited to anti-spam laws, CAN-SPAM Act, TCPA, or similar regulations) arising from your sending of Products, Fulfillment Orders, or notifications to end users or customers. You agree to indemnify us as described herein by using the Services.
8.2. By Us. Subject always to the limitations set forth in Section 9, we shall indemnify, defend, and hold you harmless from third-party claims that the unmodified Platform or Services, when used by you in strict accordance with these Terms, infringe such third party's intellectual property rights, except to the extent any such claim arises from (a) your modifications, combinations, or misuse of the Platform or Services; (b) your data, materials, or instructions; or (c) use of the Platform or Services after we have notified you to cease such use.
Our obligations under this Section 8.2 are your sole and exclusive remedies, and our sole and exclusive obligations, with respect to any alleged infringement, and are further limited by the caps and exclusions in Section 9.
8.3. Procedures. The indemnified party shall provide notice, cooperate, and allow control of defense, with participation rights. No settlement without consent.
8.4. Insurance. You shall maintain, at your expense, commercial general liability insurance with at least $1,000,000 per occurrence coverage, naming us as an additional insured. You shall provide proof of insurance upon request. Failure to maintain insurance is a material breach.
9. LIMITATION OF LIABILITY:
Except for obligations arising from confidentiality, indemnification, or willful misconduct, neither you nor we shall be liable for any indirect, incidental, special, punitive, or consequential damages of any kind, including without limitation lost profits, loss of data, loss of goodwill, or business interruption, regardless of the theory of liability.
Notwithstanding anything to the contrary, our total aggregate liability under these Terms shall be strictly limited to the amounts actually paid by you for the specific units proven to be Defective, and only those units. No other damages, recoveries, chargebacks, offsets, or remedies shall apply under any theory of liability.
Subject to the specific and exclusive remedies outlined in Sections 4 and 7, we shall have no liability for any costs, losses, or damages arising from or related to:
(i) your ecommerce or Shopify configurations;
(ii) your pricing, discount, or shipping rules;
(iii) any difference between amounts you charge your end customers and amounts we charge you; or
(iv) any duties, taxes, GST, customs, import charges, brokerage fees, or VAT assessed on shipments, all of which are solely your responsibility.
These limitations apply regardless of the theory of liability and even if any remedy fails of its essential purpose.
10. PROPOSITION 65:
You shall ensure compliance with California Proposition 65 for Products sold in California and hold us harmless from violations if not notified in advance.
11. TERM AND TERMINATION:
11.1. Term. These Terms commence on the Effective Date and continue for one (1) year (or as otherwise specified in a Statement of Work), automatically renewing annually (or monthly for Subscriptions) unless terminated. Subscriptions automatically renew monthly or annually based on your Subscription Level unless you or we terminate.
11.2. Termination. Either you or we may terminate for material breach (with thirty (30) days' cure period), insolvency, or convenience upon sixty (60) days' notice. We may terminate immediately without notice for: (a) non-payment; (b) repeated breaches; (c) violation of laws; or (d) any reason in our sole discretion. Termination does not relieve you of payment obligations.
12. EFFECT OF TERMINATION:
Upon termination, we cease Services (except in-transit orders), you pay outstanding fees (including for canceled orders or Services), and we return or destroy your materials and Confidential Information. Subscriptions end, and access to the Platform is revoked. No refunds or credits for prepaid or unused Services.
13. SURVIVAL:
Provisions regarding confidentiality, indemnification, liability limitations, payment, IP, and others that by nature survive shall do so.
14. ARBITRATION:
Any dispute arising out of or relating to these Terms shall be resolved by binding arbitration in Delaware under the rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator, and judgment on the award may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to recover attorneys' fees and costs. No class or representative actions are permitted; all claims must be brought individually. Both parties agree that all claims brought against the other must be brought in such party's individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
15. PUBLICITY:
You hereby approve the display by us of your name and logo on our website and in marketing materials, subject to your right to revoke such approval upon written notice to us.
16. THIRD PARTY SITES:
The Platform or Services may provide links to third party websites or resources ("Third Party Sites"). Because we have no control over Third Party Sites and resources, you acknowledge and agree that we are not responsible for the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Sites, and do not endorse and are not responsible or liable for any content, advertising, goods, services or other materials on, available through or provided by such Third Party Sites. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any interaction you may have with such Third Party Sites. We may enable social media connectivity on the Platform from time to time. This connectivity may link to our own social media accounts. Those social media websites are also Third Party Sites. You acknowledge and agree that the Third Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than us, and you further acknowledge and agree that your use of such Third Party Sites is governed by the respective Third Party Site terms and conditions and any other applicable policies. Third Party Sites may also be able to use information about action you take on our Platform. However, note that where you choose to publish or share information through the social media links or on our Platform, we have no control over that activity. It will not be protected by us. YOU AGREE THAT WE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
17. GENERAL:
17.1. No Election of Remedies. Remedies are cumulative.
17.2. Subcontractors. We may, in our sole discretion, engage subcontractors or third parties to perform any part of the Services or Platform operations, including but not limited to fulfillment centers, warehouses, distribution centers, Platform development, production of goods, transportation, print-on-demand, API integrations, or any other business functions, without your consent. We remain responsible for subcontractors' compliance with these Terms.
17.3. PCI Compliance. We shall materially comply with PCI-DSS for payment processing.
17.4. Force Majeure. Neither you nor we will be liable for delay or failure due to causes beyond reasonable control (acts of God, war, strikes, etc.), except your payment obligations.
17.5. Equitable Remedies. Available for breaches, without bond.
17.6. Governing Law. Delaware law, excluding conflicts. Any legal action in Delaware courts.
17.7. Severability. Invalid provisions severed.
17.8. Notices. In writing, via confirmed methods. Notices may also be sent via email to [email protected] for us and the email on file for you, effective upon confirmation of receipt.
17.9. Entire Agreement. Supersedes priors; amendments in writing.
17.10. Waiver. Not implied.
17.11. Counterparts. Permitted.
17.12. Data Usage. Our collection and use of data derived from your use of the Platform and Services is governed by Section 2.8 and the DPA.
17.13. Audit Rights. We may audit your compliance upon notice; you shall cooperate.
17.14. Changes to Terms. We reserve the right, at our sole discretion, to change or modify portions or revise these Terms at any time without notice. You should periodically visit these Terms to review the current terms that apply to your use of the Platform or Services. Any use of the Platform or Services by you after our publication of such revised Terms shall constitute your acceptance of these Terms as modified. If you do not agree, you must stop using the Platform and Services. Changes to Subscription Levels, features, pricing structures, or other aspects will be published on merch.com or updated in these Terms accordingly.
17.15. Assignment. You may not assign, transfer, or delegate these Terms or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. We may assign, transfer, or delegate these Terms or any rights or obligations hereunder, in whole or in part, without your consent, including in connection with a merger, acquisition, sale of assets (including intellectual property), reorganization, or change in corporate entity. Any attempted assignment in violation of this section shall be null and void. These Terms shall bind and inure to the benefit of you and us and permitted successors and assigns.
EXHIBIT A: DATA PROCESSING ADDENDUM:
This Data Processing Addendum ("DPA") forms part of the Terms and governs the processing of Personal Data by us on your behalf. By accepting the Terms, you agree to this DPA.
The Terms govern your access to and use of the Platform and Services, which may involve the processing of Personal Data. You act as a Controller and we act as a Processor with respect to Personal Data processed under the Terms. This DPA is intended to comply with applicable Data Protection Laws, including but not limited to the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the UK General Data Protection Regulation ("UK GDPR"), the California Consumer Privacy Act ("CCPA") as amended by the California Privacy Rights Act ("CPRA"), and equivalent laws in Asia (e.g., Singapore Personal Data Protection Act, China Personal Information Protection Law).
1. DEFINITIONS. Capitalized terms used but not defined herein shall have the meanings given in the Terms. Additional terms are defined as follows:
"Controller" means the entity that determines the purposes and means of processing Personal Data, as defined under Data Protection Laws (here, you).
"Data Protection Laws" means all applicable data protection and privacy laws, including GDPR, UK GDPR, CCPA/CPRA, and equivalents in jurisdictions where Personal Data is processed (e.g., Asia-Pacific laws).
"Data Subject" means an identified or identifiable natural person whose Personal Data is processed.
"Personal Data" means any information relating to a Data Subject processed by us on behalf of you under the Terms, including but not limited to customer names, addresses, order details, user data, and payment information derived from Fulfillment Orders, Campaigns, or Platform usage.
"Personal Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
"Processor" means the entity that processes Personal Data on behalf of the Controller (here, us).
"Processing" (and "Process") means any operation performed on Personal Data, such as collection, storage, use, disclosure, or deletion.
"Sub-Processor" means any third party engaged by us to Process Personal Data.
2. SCOPE AND PURPOSE.
2.1. This DPA applies to our Processing of Personal Data on behalf of you as necessary to provide the Platform and Services under the Terms, including fulfillment, storage, print-on-demand, API access, integrations, and Campaigns.
2.2. We shall Process Personal Data only for the purposes described in the Terms (e.g., order processing, shipping, analytics in anonymized/aggregated form per Terms Section 2.8) and in accordance with your documented instructions, unless required otherwise by applicable law (in which case we shall notify you beforehand, if permitted).
2.3. The types of Personal Data include: customer contact information (names, addresses, emails), order details (products, quantities, payment info), usage data (Platform interactions), and any other data you provide or generate via the Services.
2.4. Categories of Data Subjects include: your end customers, users, employees, or third parties involved in orders or Campaigns.
2.5. Processing duration is the Term of the Terms, plus any period required for data deletion/return post-termination.
3. OBLIGATIONS OF PROVIDER (PROCESSOR).
3.1. Compliance. We shall comply with Data Protection Laws applicable to Processors. We certify we understand and will adhere to restrictions on selling, sharing, or using Personal Data for cross-context behavioral advertising under CCPA/CPRA.
3.2. Instructions. We shall Process Personal Data only on your documented instructions (including Terms terms). If we believe an instruction violates Data Protection Laws, we shall notify you immediately.
3.3. Confidentiality. We shall ensure that personnel authorized to Process Personal Data are bound by confidentiality obligations (per Terms Section 6).
3.4. Security Measures. We shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including encryption, access controls, regular testing, and backups. Measures shall align with industry standards and protect against Personal Data Breaches. We intend to pursue certifications such as ISO 27001 or SOC 2 in the future and will notify you of material updates.
3.5. Assistance. We shall assist you, at your cost, with:
● Responding to Data Subject requests (e.g., access, deletion under GDPR Article 15-22 or CCPA).
● Conducting data protection impact assessments (GDPR Article 35).
● Fulfilling obligations under Data Protection Laws, including audits (per Terms Section 17.13).
3.6. Breach Notification. We shall notify you without undue delay (and no later than 48 hours) after becoming aware of a Personal Data Breach, providing details on the nature, consequences, and remedial actions.
3.7. Data Return/Deletion. Upon Terms termination (per Section 12), we shall, at your choice, delete or return all Personal Data and delete existing copies unless required to retain by law.
4. SUB-PROCESSORS.
4.1. We may engage Sub-Processors (e.g., shipping carriers like UPS/FedEx/USPS, cloud providers for storage) to Process Personal Data, provided they are bound by data protection obligations at least as protective as this DPA.
4.2. We shall notify you of any new Sub-Processor at least 10 days in advance, allowing you to object (if reasonable, we may suspend relevant Services until resolved).
5. INTERNATIONAL TRANSFERS.
5.1. For transfers outside the EEA/UK (e.g., to U.S. or Asia), we shall use appropriate safeguards, such as Standard Contractual Clauses (EU/UK approved) or equivalent mechanisms under applicable laws.
5.2. If a transfer mechanism is invalidated (e.g., by court decision), you and we shall negotiate alternatives in good faith.
6. AUDITS AND INSPECTIONS.
6.1. Upon reasonable request and at your cost, we shall make available information necessary to demonstrate compliance with this DPA, including security reports or certifications.
6.2. You may conduct audits (per Terms Section 17.13) no more than once per year, with 30 days' notice, during business hours, and without disrupting operations.
7. LIABILITY AND INDEMNITY. Subject to Terms Section 9 limitations, except Data Protection Laws mandates (e.g., GDPR Article 82). You indemnify us per Terms Section 8.1 (e.g., non-compliance, instructions).
8. CONFLICTS AND ORDER OF PRECEDENCE. In case of conflict between this DPA and the Terms, this DPA prevails regarding Personal Data Processing. Otherwise, Terms terms apply (per Section 2.7).
9. TERM AND TERMINATION. This DPA terminates with the Terms but survives for obligations related to Personal Data (e.g., deletion and confidentiality obligations under Terms Section 6).
10. GOVERNING LAW. Governed by Delaware law (Terms Section 17.6), with disputes resolved per Terms Section 14 (Arbitration).
11. MISCELLANEOUS.
11.1. Amendments. In writing, signed by both parties, or as permitted by Terms Section 17.14 for our amendments.
11.2. Severability. Per Terms Section 17.7.
11.3. Notices. Per Terms Section 17.8.