Terms of Service

These Terms of Service (the “Terms of Service”) govern your use of all Web sites owned or operated by [Merch Asylum Ltd] (“Manic Merch”), including, without limitation, the Web site currently located at [www.manicmerch.com] which allows users to sell customized branded products (“Products”) and/or purchase such Products (collectively, the “Site”), and any and all associated services provided by Manic Merch in connection with the Site (collectively, the “Services”). Please read these Terms of Service carefully. These Terms of Service constitute a binding agreement between you and Manic Merch regarding your use of the Services. By using the Services, you agree to be bound by these Terms of Service and the Manic Merch Privacy Policy [link]. If you do not agree to any provision of these agreements, you may not use the Services.

  1. Merchant Terms and Conditions

    In order to use the feature of the Services which allows you to create, produce, market and sell Products (the “Merchant Service”), you must agree to be bound by additional terms and conditions applicable to the Merchant Service. By using the Merchant Service, you agree to be bound by such additional terms and conditions set forth in the Merchant Terms and Conditions.

  2. Terms of Service Changes

    Manic Merch may, in its sole and absolute discretion, change these Terms of Service from time to time, including, without limitation, offering new features and services on or through the Site. Manic Merch will post a copy of these Terms of Service as changed on the Site at Terms of Service. Your continued use of the Services constitutes your agreement to abide by these Terms of Service as changed. If you object to any such changes, your sole recourse shall be to cease using the Services.

  3. Eligibility to Use the Services

    Except as expressly provided below, the Services may only be used by individuals and entities who can form legally binding contracts under applicable law. No person under the age of 18 may use the Services without the supervision of a parent or legal guardian. Your use of the Services will be deemed to be a representation that you are of the age of majority or older or are using the Services with the permission of your parent or guardian. We require that all purchases be made either (i) by individuals of the age of majority or older or (ii) by minors given verifiable permission by their parent or legal guardian to purchase Products on the Services.

  4. Account and Password Security

    You may create your own account with Manic Merch by completing the online registration process on the Site, and you must do so if you would like to make a purchase. As part of the registration process, you will be asked to provide certain personal information. Your decision to provide any information to Manic Merch is purely optional. If you elect to provide information to Manic Merch, you agree to provide information that is true and accurate, and to update such information if it changes. If you elect to not provide that information, or if the information you provide is not complete, current, true and accurate, you may not be able to use some or all of the Services, including, without limitation, purchasing Products and receiving messages from Manic Merch about your orders or other matters. You may also be required to choose a username and password. Your username and password will be your identity for purposes of interacting with Manic Merch and third parties through the Site. You shall use your account, username and password solely in accordance with these Terms of Service. You are solely responsible for maintaining the security of your username and password and any activity that occurs under your account. You will promptly notify Manic Merch via e-mail [email], if you learn of or suspect any loss, theft or unauthorized use of your account, username or password.

  5. Ownership

    Other than “Content” (as such term is defined in the Merchant Terms and Conditions [link]), the content on the Site and all aspects of the Services, including, without limitation, text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, “Manic Merch Content”), and the Manic Merch word marks and design marks, as well as certain other of the names, logos and materials displayed on the Site or through the Services that constitute trademarks (collectively, “Marks”), are owned by or licensed to Manic Merch and are subject to copyright, trademark and other intellectual property rights under U.S. and international laws.

  6. Use of the Services

    You may not reproduce, duplicate, copy, sell, resell or exploit for any purposes the Services, or any portion of the Services, including, without limitation, Manic Merch Content and Marks, except as authorized by these Terms of Service. You must abide by all copyright notices, information or restrictions contained in or associated with any Manic Merch Content. The Services are provided for your personal, non-commercial use only, except as otherwise authorized by the Merchant Terms and Conditions for users of the Merchant Service.

    Prohibited activities include, without limitation, the following:

    • a. violating any local, state, national or international law or regulation or any provision of these Manic Merch Terms of Service;
    • b. knowingly transmitting any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
    • c. collecting personal information, including, without limitation, account names or e-mail addresses, of other users from the Services through automated means or otherwise;
    • d. impersonating any person or entity or otherwise misrepresenting your affiliation with a person or entity;
    • e. interfering with or disrupting the Services or servers or networks connected to the Services, or disobeying any requirements, procedures, policies, or regulations of networks connected to the Services;
    • f. attempting to decipher, decompile, disassemble, or reverse engineer any of the software comprising any part of the Services;
    • g. attempting to interfere with any security feature of the Services, or circumvent, disable or interfere with any copyright management or other technological measure that effectively controls access to, use or copying of content of the Services; and
    • h. launching any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Services in a manner that sends more request messages to the Services in a given period of time than a human can reasonably produce in the same period by using a conventional Web browser.
  7. Privacy Policy

    You agree that Manic Merch may use any information Manic Merch obtains about you in accordance with the provisions of the Manic Merch Privacy Policy.

  8. Sales Tax

    If you purchase any products available on the Site (“Products”), you will be responsible for paying any sales tax indicated on the Site.

  9. Shipping Policy

    When you place an order for Products, Manic Merch will ship the Products to the address designated by you in accordance with the Manic Merch Shipping Policy. Risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged or lost shipments.

  10. Fraud

    Manic Merch reserves the right, but undertakes no obligation, to actively report and prosecute actual and suspected credit card fraud. Manic Merch may, in its discretion, require further authorization from you such as a telephone confirmation of your order and other information. Manic Merch reserves the right to cancel, delay, refuse to ship or recall from the shipper any order if fraud is suspected. Manic Merch captures certain information during the order process, including time, date, IP address and other information that will be used to locate and identify individuals committing fraud. If any Site order is suspected to be fraudulent, Manic Merch reserves the right, but undertakes no obligation, to submit all records, with or without a subpoena, to all law enforcement agencies and to the credit card company for fraud investigation. Manic Merch reserves the right to cooperate with authorities to prosecute offenders to the fullest extent of the law.

  11. Intellectual Property Infringement Procedure

    Manic Merch respects the intellectual property rights of others. The Merchant Terms and Conditions [link] prohibits users from violating or infringing the intellectual property rights (including, without limitation, copyrights, trademarks, trade dress, and publicity rights) of any third party in connection with their use of the Merchant Service. Upon proper notice, Manic Merch will, in its discretion, remove Content or other applicable content that violates intellectual property rights under applicable law, suspend access to the Services (or any portion thereof) to any user who uses the Services in violation of such law, and/or terminate the accounts of repeat infringers. If you believe your work has been copied in a way that constitutes intellectual property rights infringement, please send Manic Merch’s intellectual property agent (listed below) a written notification of claimed infringement with all of the following information:

    • a. identification of the intellectual property right (e.g., copyright, trademark, etc.) and the work claimed to have been infringed, or, if multiple rights and works are covered by a single notification, a representative list of such rights and works;
    • b. identification of the claimed infringing material and information reasonably sufficient to permit Manic Merch to locate the material on the Services;
    • c. information reasonably sufficient to permit Manic Merch to contact you, such as an address, telephone number, and, if available, an email address;
    • d. a statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property rights owner, its agent, or the law;
    • e. a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the intellectual property rights owner or authorized to act on the owner’s behalf; and
    • f. your physical or electronic signature.

    Please send all of the above-enumerated information to the following Manic Merch intellectual property agent:
    Manic Merch
    6070 Old Court Street Road
    Syracuse, NY 13203
    Telephone
    Fax
    Email

  12. Links to Other Web Sites

    The Site may contain links to third party Web sites or Internet resources that are not owned or controlled by Manic Merch. Manic Merch’s provision of a link to any other Web site or Internet resource is for your convenience only and does not signify Manic Merch’s endorsement of such other Web site or resource or its contents. MANIC MERCH SHALL NOT BE RESPONSIBLE FOR THE AVAILABILITY OF ANY THIRD PARTY WEB SITES OR RESOURCES, AND Manic Merch DOES NOT WARRANT, ENDORSE GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY CONTENT, INFORMATION, SOFTWARE, MATERIALS OR PRACTICES OF ANY SUCH THIRD PARTY WEB SITES OR RESOURCES, INCLUDING, WITHOUT LIMITATION, ANY PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR THROUGH ANY LINKED WEB SITES OR FEATURED IN ANY ADVERTISING.

  13. Disclaimer

    YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, Manic Merch EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, ACCURACY AND NON-INFRINGEMENT), WITH RESPECT TO THE SERVICES. MANIC MERCH MAKES NO REPRESENTATION OR WARRANTIES ABOUT THE ACCURACY, QUALITY, RELIABILITY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:

    • a. ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OBTAINED FROM THE USE OF THE SERVICES;
    • b. PERSONAL INJURY OR OTHER HARM, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES;
    • c. ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED THEREIN;
    • d. ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES;
    • e. ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; AND
    • f. FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SERVICES.

    MANIC MERCH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. ALL PRODUCTS ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY, PROVIDED IN THE PRODUCT PACKAGING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MANIC MERCH HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, ACCURACY AND NON-INFRINGEMENT), WITH RESPECT TO THE PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE MANIC MERCH HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES OR MISAPPROPRIATION.

  14. Limitation of Liability

    YOU UNDERSTAND THAT TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Manic Merch BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM (A) YOUR (OR ANYONE USING YOUR ACCOUNT’S) USE OF THE SERVICES; (B) THE UNAVAILABILITY OF THE SERVICES OR INTERRUPTIONS IN THE AVAILABILITY OF THE SERVICES; (C) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES OR OF ANY CONTENT MADE AVAILABLE ON OR THROUGH THE SERVICES; (D) THE ACTIONS OF OTHER USERS OF THE SITE OR OF ANY THIRD PARTY; OR (E) THE UNINTENTIONAL DISCLOSURE OF INFORMATION STORED ON OR TRANSMITTED THROUGH THE SERVICES.

  15. Exclusions and Limitations

    Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Manic Merch may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Manic Merch’s liability shall be the minimum permitted under such applicable law.

  16. Indemnity

    You agree to indemnify, defend, and hold harmless Manic Merch and its affiliates and any of their officers, employees, directors, shareholders, agents, partners, licensors, successors and assigns (the “Manic Merch Parties”) from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and costs) that such parties may incur as a result of or arising from (a) any information you provide to Manic Merch; (b) your use of the Services and the use of the Services under your account; or (c) your violation of these Terms of Service. Manic Merch reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Manic Merch in asserting any available defenses.

  17. Force Majeure

    Without limiting the foregoing, under no circumstances will Manic Merch be held liable for any delay or failure in performance due in whole in or in part to any acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, software bugs, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, earthquakes, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

  18. Termination

    Manic Merch may terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if you breach any provision of these Terms of Service or, if applicable, the Merchant Terms and Conditions. In the event of any such termination, the indemnification provisions set forth above shall survive.

  19. Modifications to the Services

    Manic Merch reserves the right to modify or discontinue the Services with or without notice to you. Manic Merch shall not be liable to you or any third party should Manic Merch exercise its right to modify or discontinue the Services.

  20. Arbitration

    You and Manic Merch agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Manic Merch hereby waive any right to a jury trial of any Claim. All controversies, claims, counterclaims, or other disputes arising between you and Manic Merch relating to the Site or Services or these Terms of Service (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator in New York, New York. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.

    You may not act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Manic Merch’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.

    THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR MANIC MERCH WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

  21. General Provisions

    These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws rules or provisions. If any provision of these Terms of Service shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions. The failure of Manic Merch to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. These Terms of Service, the Manic Merch Privacy Policy and, if applicable, the Merchant Terms and Conditions, together with and any other policies, rules or guidelines posted in connection with the Services, constitute the entire and exclusive agreement between Manic Merch and you regarding the Services, and the foregoing, as applicable, supersedes and replaces any prior agreements between Manic Merch and you regarding the Services.

Effective Date: 3/15/2016