Merchify™ Terms of Service
1. Services. The Merchify app (the “App”) and related services (the “Service” or “Services”) enable Shopify merchants to sell various physical products to their customers on an on-demand basis, with production and fulfillment handled by Copernica, Inc. d/b/a Amplifier (“Amplifier”). The Services are provided to you subject to the following Terms of Service (“TOS”) and are subject to the prices and freight charges specified in the App.
Do not use the Services if you do not agree with any terms of the TOS or any information posted at Merchify.com. Using the Services shall be deemed your agreement to abide by each of the terms in this TOS.
Only Amplifier or its designee may print and fulfill items made via the App. Connecting Merchify products to another production or fulfillment service will result in termination of service. While you may contact Amplifier with any questions, Amplifier will not respond to inquiries from your end customers. You agree to handle such customer service. Directing your end customers to Amplifier may result in the termination of service. Amplifier is not responsible for items lost, delayed, or damaged in transit. Amplifier does not accept returns or exchanges for products that it makes and ships per the Services.
2. Changes. Amplifier reserves the right to modify the Services and may change, suspend, or discontinue any aspect of the Service at any time without any liability to you or any third party. Amplifier shall have complete discretion over the features, functions, prices and other terms and conditions on which the Service is offered. At any time, Amplifier may change this TOS by updating the App or posting updates to Merchify.com. If any modification is unacceptable to you, your only recourse is to stop using the Services. If you do not stop using the Services, you shall be conclusively deemed to have accepted the changes. You are expected to check this page frequently so you are aware of any changes, as they are binding on you. Contact us at firstname.lastname@example.org with questions.
3. Eligibility. You may not use the Services unless you are 18 years old or older. Amplifier will only knowingly provide the Services to parties that can lawfully enter into and form contracts under applicable law. The Services also require that you have a valid, active credit card on file with Amplifier via the App. You must comply with all of the terms and conditions of this TOS, applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the Services.
4. User Account, Password, and Security. To complete your registration, you will provide a Shopify store URL, an email address, and a password. You are responsible for maintaining the confidentiality of the password and account, and you are responsible for all activities that occur under your password or account. You agree to (a) immediately notify Amplifier of any unauthorized use of your account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Amplifier cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
5. Your License to Use the App and the Services. Amplifier solely and exclusively owns all intellectual property and other rights, title and interest in and to the Merchify Services, App and site. You will not acquire any right, interest, or title therein under this TOS or otherwise to the Services, App, site or any other intellectual property owned by Amplifier. Subject to your compliance with the terms and conditions of this Agreement and any additional terms provided in a separate applicable agreement, Amplifier grants you a non-exclusive, non-transferable, non-sublicenseable license to use the Software solely as necessary to use the Services and provided that you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part. We reserve the right to terminate this license at any time.
6. Payment. Amplifier may charge you the wholesale price and shipping surcharge for any product and the freight charge for any order that you send to Amplifier via Merchify, at any time after the order is first placed on your store. Prices for products and freight are defined in the App and are subject to change. You may charge any retail price (the price the end customer pays you) you desire at any time.
7. Sales Taxes. You are responsible for calculating and remitting any sales taxes related to sales of products through the Service to your customers. In addition, if you are engaged in business in Texas, until Amplifier acknowledges that you have a Texas Resale Certificate on file with Amplifier, Amplifier will not allow products that you create via Merchify to be sold via Shopify.
9. Prohibited Use. You may only use the Services as expressly permitted by Amplifier. You may not cause harm to the App or the Services. Specifically, but not by way of limitation, you may not: (a) interfere with the Services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (b) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Services; (c) interfere with, or disrupt the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Service; (d) use a robot, spider or other device or process to monitor the activity on or copy pages from the App or site, except in the operation or use of an internet “search engine”, hit counters or similar technology; (e) collect electronic mail addresses or other information from third parties by using the Service; (f) impersonate another person or entity; (g) use any meta tags, search terms, key terms, or the like that contain Amplifier’s name or trademarks; (h) engage in any activity that interferes with another user’s ability to use or enjoy the Services; or (i) assist or encourage any third party in engaging in any activity prohibited by this TOS.
10. Setting up and Maintaining an Account. To use the Services, you must have a Shopify store, install the App, and provide complete contact information as required by the App. You must immediately update Amplifier via the App if your contact information changes. If you fail to do so, Amplifier may terminate Services.
12. Your Products. You create products for Amplifier to make and fulfill only by using the App. If you create products via the App, only Amplifier may make and fulfill them. When you upload your artwork, designs or other Content (each, a “Design” and collectively, “Designs”) to create products via the Services, you grant Amplifier a royalty free, global, transferable, nonexclusive license with the right to sublicense such Designs in all media now or in the future for the purpose of creating the Products you build through the App and Services. You also grant us the license and the right to make modifications to your Design as necessary to prepare your Design for use in a particular Product category or for other manufacturing purposes, if you agree that your Design may be used in such category -- though Amplifier is under no obligation to make any modifications. This section only gives Amplifier a right to use your Design in a limited manner. It does not transfer ownership of the Design. You may remove your Design from the App at any time, and you retain all copyright and other intellectual property rights in your Design. Upon the removal of a Design, the licenses above will terminate, except that Amplifier will fulfill any orders placed prior to termination.
You acknowledge that Amplifier does not pre-screen submitted Designs, but that Amplifier and its designees shall have the right (but not the obligation) in their sole discretion to reject or remove any Design that is available via the Services. You acknowledge that Amplifier may review any order, and the material (including but not limited to text, data, photographs, graphics, files, images, information and all digital data or any combination of these elements) (collectively, “Content”) it contains, for adherence to our guidelines and compliance with the terms and conditions set forth in this Agreement. Amplifier does not endorse any Content submitted to the App by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Amplifier expressly disclaims any and all liability in connection with Content. Without limiting the foregoing, Amplifier and its designees shall have the right to remove, without prior notice, any Content that violates the Agreement or is otherwise objectionable to Amplifier. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge and agree that you are responsible for the creation and compilation of your Content, and that neither Amplifier nor any other party involved with the production of any product incorporating such Content assumes that responsibility. Amplifier’s production of any product depicting your Content does not indicate that Amplifier approves of the Content, that the Content obeys all applicable laws, or that you are absolved of any liability or harm arising from the use of the Content.
13. Title to Products. Title to the Products your Customer purchases from you via Merchify passes to your Customer when the Products are produced by Amplifier.
14. Monitoring. Amplifier reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Service. If Amplifier determines, in its sole and absolute discretion, that you or another Amplifier user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, Amplifier may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
15. Acceptable Use. In using this Service, you agree to not:
a) use the Service to harm minors in any way, including, but not limited to, uploading Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
b) upload Content that may be seen as condoning or encouraging unsafe practices that would result in the physical, mental or moral harm of children;
c) upload, download, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, profane, indecent, inflammatory, libelous, tortious, hateful, racially, ethnically, socially, politically, legally, morally, religiously objectionable or otherwise objectionable, or invasive of another’s rights including but not limited to rights of celebrity, privacy and intellectual property.
d) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) upload, download, post, email or otherwise transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. As a guideline, you may contribute only original work that you have created yourself from original elements. This means you can’t use images of celebrities or corporate products, nor images, text, or designs that you’ve copied from a website without written permission from the owner. You cannot create a “new” image using elements from images other people have created. You cannot contribute a quote or a slogan that is substantially the same as something already written by someone else. By uploading any Content, you represent and warrant that you have the lawful right to reproduce and distribute such Content and that the Content complies with all applicable federal, state and local laws, regulations and ordinances;
f) upload, download, post, email or otherwise transmit any Content that would constitute or encourage a criminal offense, illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law;
g) upload, download, post, email or otherwise transmit any material that contains 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;
h) upload, download, post, email or otherwise transmit false or misleading information;
i) disrupt or interfere with the security of, or otherwise abuse, the Service;
j) disrupt or interfere with any other user’s enjoyment of the Service or affiliated or linked websites;
k) incorporate images or names that would violate a person’s right of privacy or publicity; or
l) use a manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service.
16. Representations and Warranties.
16.1 Mutual Representations and Warranties. You represent and warrant to Amplifier and Amplifier represents and warrants to you: (a) that you or it has the full power and authority to enter into and perform under this TOS, (b) the execution and performance of your or its obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (c) this TOS is a legal, valid and binding obligation of the party entering into this TOS, enforceable in accordance with its terms and conditions.
16.2 By You. You represent and warrant to Amplifier that, in your use of the Service, you: (a) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party, and (b) will not violate any applicable laws, rules, and regulations, including, without limitation, by exploiting images or the likeness of minors. You further represent and warrant to Amplifier that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) Amplifier will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that Amplifier incurs in providing the Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
17. DISCLAIMER OF WARRANTIES. AMPLIFIER PROVIDES THE APP AND SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. AMPLIFIER DOES NOT REPRESENT OR WARRANT THAT THE APP, SERVICE OR ITS USE: (A) WILL BE UNINTERRUPTED, (B) WILL BE FREE OF INACCURACIES OR ERRORS, (C) WILL MEET YOUR REQUIREMENTS, OR (D) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. EXCEPT FOR WARRANTIES MADE EXPRESSLY IN THESE TOS, AMPLIFIER HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. LIMITATION OF LIABILITY. IN NO EVENT WILL AMPLIFIER, ITS AFFILIATES OR ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY 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 THE USE OF THE SERVICE OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (A) THE AMOUNT PAID BY YOU TO AMPLIFIER DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (B) $100. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
19. Indemnification. You hereby indemnify and hold Amplifier and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the “Parties”) harmless from any damage, loss, or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission, including without limitation monetary damages incurred by Amplifier due to any breach of this Agreement or violation of any policy. If you have to indemnify Amplifier under this Section, Amplifier will have the right to control the defense, settlement, and resolution of any Claim solely as against you and at your sole expense. However, you may not settle or otherwise resolve any Claim without Amplifier’s express written permission.
20.1 Termination. In its sole discretion, with or without notice to you, Amplifier may: (a) suspend, limit your access to or terminate your use of the Service, (b) suspend, limit your access to or terminate your account, (c) remove any of your Content from Amplifier’s servers and directories and (d) prohibit you from using the Service.
20.2 Survival. Notwithstanding Section 20.1 above, this TOS will survive indefinitely unless and until Amplifier chooses to terminate this TOS.
20.3 Effect of Termination. If you or Amplifier terminates your use of the Service, Amplifier may delete any Content or other materials relating to your use of the Service on Amplifier’s servers or otherwise in its possession, and Amplifier will have no liability to you or any third party for doing so.
21. Notices. All notices required or permitted to be given under these TOS will be in writing and delivered via electronic mail. If you give notice to Amplifier, you must email email@example.com. If Amplifier provides notice to you, Amplifier will use the email address provided by you to Amplifier. All notices will be deemed received 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement. You agree to maintain a current email address and to provide such to Amplifier.
22. Governing Law. The MSA and the relationship between Client and Amplifier shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. All disputes arising out of or relating to this Agreement may only be brought in the state or federal courts located in Travis County, Texas, and the parties hereby agree and submit to the personal and exclusive jurisdiction and venue of these courts. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
23. Headings. The section headings in the Agreement are for convenience only and have no legal or contractual effect, and shall not be interpretive of the content of such section.
24. Waiver. No failure or delay by either party to enforce or take advantage of any provision or right under this Agreement shall constitute a subsequent waiver of that provision or right, nor shall it be deemed to be a waiver of any of the other terms and conditions of this Agreement.
25. Disputes. The prevailing party in any legal action arising out of or related to this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement of expenses incurred in such action, including court costs and reasonable attorneys’ fees.
26. Severability. In the event that any provision of this Agreement is prohibited by any law governing its construction, performance or enforcement, such provision shall be ineffective to the extent of such prohibition without invalidating thereby any of the remaining provisions of the Agreement.
27. Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if the delay or failure arises by reason of any Act of God, or any governmental body, natural disasters, or other reason beyond the reasonable control of such party.
29. Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. You may not assign this Agreement (including without limitation, by merger, operation of law or otherwise) without the prior written consent of Amplifier.