Merch Cat
Terms and Conditions
• Acceptance of Terms: Merch Cat (the “Service”) is a mobile and web based software service that facilitates the sale and tracking of inventory of musician’s (the “Artist”) merchandise at live shows. It is connected to the mobile and web software platform Merch Cat FAN which facilitates the sale of this same merchandise to music fans who wish to purchase this merchandise in their own app. Both services are operated under the umbrella of Merch Cat LLC. The use of the collective services of Merch Cat and Merch Cat FAN shall be referred to as having an “Artist Account”. To participate in these Services you must read and accept all of the terms and conditions of this agreement.
**Artists are also subject to the terms and conditions in Supplemental Terms and Conditions – Artists, which is incorporated by reference into this agreement. Merch Cat may modify the terms of this agreement, in our sole discretion, by posting amended terms to the MerchCat.com website. Your continued use of the service indicates your acceptance of the amended agreement.
• Participation: Your participation in the Service may require that you supply certain personal information to Merch Cat. The information you supply must be full, complete, and accurate. You are required to maintain and update this information to keep it current, complete and accurate. Personal information supplied will be subject to the Merch Cat Privacy Policy. By using the Site or the Service, you are consenting to have your personal data transferred to (where applicable) and processed in the United States.
• Responsible Use / Code of Conduct: As a condition of participation in the Service you will not use the Services for any purpose that is unlawful or prohibited by these Terms of Service, or any other purpose not reasonably intended by Merch Cat. Further, your use of the Service will be in conformity with the Merch Cat Code of Conduct, which is incorporated by reference into this agreement. Merch Cat may remove any content or account at any time for any reason at its sole discretion.
Abuse: To report any abuse of the Service please use the contact form at: https://www.merchcat.com/
• Content: All postings, messages, text, files, images, photos, video, sounds, or other materials (“Content”) posted on, transmitted through, or linked from the Service, are the sole responsibility of the person from whom such Content originated. You are entirely responsible for any item of Content that you post, email or otherwise make available via the Service. Merch Cat does not control, and is not responsible for, Content made available through the Service, and by using the Service you may be exposed to Content that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Merch Cat makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in such Content. You must evaluate, and bear all risks associated with, the use of any Content or any reliance on said Content, and in no circumstances will Merch Cat be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content made available via the Service. You acknowledge that Merch Cat does not pre-screen or approve Content, but that Merch Cat shall have the right (but not the obligation) in its sole discretion to refuse, delete or move any Content that is available via the Service for any reason.
• Trademark and Copyright: Merch Cat LLC, Merch Cat, MerchCat.com, Merch Cat , MerchCatFAN.com, the Merch Cat and Merch Cat logos, and other names, logos, icons and marks identifying Merch Cat and Merch Cat products and services are trademarks of Merch Cat LLC and may not be used without the prior written approval of Merch Cat. All rights not expressly granted in this agreement are reserved.
• Payments:
Terms Applicable to All Merch Cat Payments
• In order to make a purchase you must be over [18] years of age and possess an acceptable valid credit or debit card issued by a bank acceptable to us. When placing an order you undertake that all details you provide to us are true and accurate, that you are an authorised user of the credit or debit card used to place your order and that there are sufficient funds to cover the cost of the purchased items such as albums, t-shirts and other goods both physical and digital (Merchandise).
• Dispatch times for “Ship To Home” Merchandise may vary according to availability and no guarantees or representations are made as to delivery times. Delivery times may vary depending on the territory in which the Fan resides. If the Artist anticipates that Merchandise due to a Fan will not be sent in a reasonable timeframe, it is the artist’s sole responsibility to notify you of the delay in delivery.
• While we try and ensure that all details, descriptions and prices which appear are accurate, errors may occur. If we discover an error in the price of any Merchandise which you have ordered due to technological errors in our system, we will inform the Artist as soon as possible and give you the option of reconfirming your order at the correct price or cancelling it. If we are unable to contact you we will treat the order as cancelled. If you cancel and you have already paid for the Merchandise, you will receive a full refund. Where applicable, prices are exclusive of tax at the prevailing rate. Merch Cat will not be responsible for any errors incurred by an Artist’s use of its Merch Cat Account that are reflected in Merch Cat .
• Unless otherwise noted, Shipping costs will be charged when you place an order. Shipping costs are displayed where applicable and included in the total price you pay at checkout. The Fan shall be solely responsible for any customs, excise tax and import fees incurred in relation to any Merchandise order.
• All orders are subject to availability. All prices advertised are subject to change at the artist’s discretion. The artist retains the right to refuse any order made by you.
• It is your obligation to keep delivery information for order up to date. Refunds will not be given for orders shipped to the wrong address.
• Termination: Merch Cat may terminate or suspend any and all Services, and your Merch Cat account, immediately and without prior notice or liability, if you breach any of the terms or conditions of the Terms of Service. Upon termination of your account, your right to use the Services will immediately cease. If you wish to terminate your Merch Cat account, you may simply discontinue using the Services or contact Merch Cat through http://www.Merch Cat .com/site/contact (all termination request will be completed within 30 days). All provisions of the General Terms and Conditions which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnities and limitations of liability.
• Disclaimer of Warranties: YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND/OR ANY OTHER CONTENT YOU DOWNLOAD FROM MERCH CAT OR MERCH CAT IS AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF FILES, SOFTWARE, SERVICES AND/ OR OTHER CONTENT. THE SERVICES AND/OR OTHER CONTENT YOU DOWNLOAD FROM MERCH CAT ARE PROVIDED ON AN “AS IS” BASIS. MERCH CAT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MERCH CAT MAKES NO WARRANTY THAT THE SOFTWARE, SERVICES AND/OR ANY OTHER CONTENT YOU DOWNLOAD FROM MERCH CAT WILL MEET YOUR REQUIREMENTS, OR THAT THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES MERCH CAT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
• Limitation of Liability: IN NO EVENT WILL MERCH CAT, MERCH CAT OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICE, EVEN IF MERCH CAT IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MERCH CAT ’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO MERCH CAT FOR THE SERVICE, BUT IN NO CASE WILL MERCH CAT ’S LIABILITY TO YOU EXCEED $200. YOU ACKNOWLEDGE THAT IF NO SUMS ARE PAID TO MERCH CAT FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM MERCH CAT , REGARDLESS OF THE CAUSE OF ACTION. NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
• External Links: Merch Cat may provide links to other websites or resources, however Merch Cat is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Merch Cat shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
• Indemnity: You agree to indemnify and hold Merch Cat, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any content, any third party content you post or share on or through Merch Cat, your use of the Service of Merch Cat , your conduct in connection with the Service or Merch Cat or with other users of the Service or Merch Cat , or any violation of this Agreement, any law or the rights of any third party.
• Entire Agreement: This agreement constitutes the entire agreement between you and Merch Cat regarding the use of the Service, superseding any prior agreements between you and Merch Cat relating to the Service. The failure of Merch Cat to exercise or enforce any right or provision of this agreement shall not constitute a waiver of such right or provision in that or any other instance. If any provision of this agreement is held invalid, the remainder of this agreement shall continue in full force and effect. If any provision of this agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. No variation to this agreement will be binding upon Merch Cat unless it is made in writing and signed by a director or officer of Merch Cat .
• Governing Law and Jurisdiction: These terms and conditions shall be governed by and construed in accordance with United States law, without regard to its conflict of laws principles. Disputes arising in connection with these terms and conditions shall be subject to the exclusive jurisdiction of the United States courts. You waive any claim that any a legal proceeding (including any tort claim) brought in accordance with this clause has been brought in an inconvenient forum or that the venue of that proceeding is improper.
**Supplemental Terms and Conditions – Artists
• Merch Cat (the “Service”) is a mobile and web based software service that facilitates the sale and tracking of inventory of musician’s (the “Artist”) merchandise at live shows. It is connected to the mobile and web software platform Merch Cat FAN which facilitates the sale of this same merchandise to music fans who wish to purchase this merchandise in their own app. Both services are operated under the umbrella of Merch Cat LLC. The use of the collective services of Merch Cat and Merch Cat FAN shall be referred to as having an “Artist Account”. These Supplemental Terms and Conditions govern the relationship between Merch Cat and an Artist in relation to the Service.
• Signing up: In signing up to use the Service, or during their membership, Artists may be requested to provide information to Merch Cat relevant to their membership. Artists will provide this information promptly and in good faith, and provide all other assistance and information reasonable requested by Merch Cat.
Merch Cat FAN: An Artist may opt in to Merch Cat FAN via their account profile in the Merch Cat app. Upon doing so, Artist is subject to and will be deemed in agreement of the Merch Cat Fan Terms & Conditions available on the Merch Cat FAN website.
• Payments:
• Merch Cat FAN uses SquareUp (“Square”) as its payment processor. Each Artist must sign up for a Square account to facilitate receipt of sales proceeds. Square charges 2.9% + $.30 as a transaction fee on each transaction. Merch Cat participates in this expense pari-pasu with the Artist. If applicable, certain payment methods may give rise to higher payment processing costs and may affect your net proceeds.
• Merch Cat FAN will deduct it’s App Fee at the same time the proceeds of a Sale are transmitted to Artist. Our standard App Fee is 7% of the total amount of the sale price including shipping, after the SquareUp transaction fee is deducted.
• Immediately upon the sale of merchandise, Merch Cat FAN via SquareUp, shall transfer to the Artist 93% of the proceeds of each merchandise sale, less applicable payment processing fees.
• International payments if applicable, and certain payment methods may give rise to higher payment processing costs. We will ensure that your proceeds are not lower than agreed on account of payment processing costs.
• Artist may cease the use of the Merch Cat FAN Service at any time, by turning it off in their Merch Cat app Profile. Artist is solely responsible for any refunds or merchandise due to the Fan at that time.
• We do not make any guarantees with respect to the timing of receipt of funds to the Artist’s Square account, which may be subject to payment processing or other delays. Do not take any actions in reliance on the receipt of funds until you are in receipt of cleared funds.
• ChargeBacks and Refunds: Artist is solely responsible for refunds and chargebacks. If, for any reason, Merch Cat FAN is required to refund monies to Fans of a Campaign, the Artist will fully compensate Merch Cat for the amount refunded as well as any associated costs, including but not limited to transaction or administrative costs
• Merchandise Fulfillment: Fulfillment of all merchandise sold via the Merch Cat platform and the Merch Cat FAN app to the Fan, whether ‘Ship To Home” or “Pick Up At Show”, is the artist’s sole responsibility.
• Intellectual Property: Artist shall fully own all the intellectual property to all merchandise sold on Merch Cat and Merch Cat FAN . Artist grants to Merch Cat and Merch Cat FAN a non-exclusive, worldwide license to (i) to display and distribute any artwork, photographs supplied by the Artist, liner notes, metadata, track data lyrics and editorial content relating to the recordings, and (ii) to use the name (including professional name(s)), likeness, performances, photographs, and biographical material of each performer, producer, and songwriter featured on a recording, in connection with promoting the Artist’s Account or Merch Cat .
• Representations, Warranties and Indemnities: Artist hereby warrants and represents that: (i) It has the right and power to enter into and fully perform all of its obligations under this Agreement; (ii) It has the authority and right to provide Merch Cat FAN with the rights granted herein; (iii) Merch Cat ’s exercise of the rights granted herein will not infringe upon any copyright, trademark, right of publicity, moral right or other proprietary, intellectual property, contractual or other right of any person anywhere in the world; (iv) None of the content provided to Merch Cat by the Artist violates any applicable laws or regulations, including, without limitation, defamation and obscenity laws; (v) The recordings do not include any unlicensed samples or interpolations, Artist shall have the sole responsibility to ensure, as necessary, that all recordings are fully licensed; (vi) No agreement of any kind entered into by Artist does or will interfere in any manner with Merch Cat ’s complete performance of this Agreement, or with the rights granted to Merch Cat herein; and (vii) Merch Cat shall not be required to make any payments to third parties in connection with exploitation of the Masters, Controlled Compositions or Content hereunder. Artist will defend, indemnify, and hold harmless Merch Cat , its parents, subsidiaries, affiliates, and their respective directors, officers, employees, and agents, with respect to any claim, demand, cause of action, or debt or liability brought by or claimed by any third party, including attorneys’ fees, to the extent that any such claim is based upon or arises out of a breach of any of Licensor’s representations, warranties, covenants, or obligations.
• Tax or other financial obligations: Artist will be fully responsible for any taxation or other financial obligations arising out of its participation in the service. If, for any reason, Merch Cat FAN is required to pay any monies relating either directly or indirectly to an Artist’s account, Artist shall fully reimburse Merch Cat FAN for those amounts within 30 days of being informed of these payments.
Code of Conduct
• Principles: Merch Cat (the “Service”) is a mobile and web based software service that facilitates the sale and tracking of inventory of musician’s (the “Artist”) merchandise at live shows. It is connected to the mobile and web software platform Merch Cat FAN which facilitates the sale of this same merchandise to music fans who wish to purchase this merchandise in their own app. Both services are operated under the umbrella of Merch Cat LLC. The use of the collective services of Merch Cat and Merch Cat FAN shall be referred to as having an “Artist Account”. In order to facilitate this we require that all users of the Service abide by this Code of Conduct. Merch Cat may modify the terms of this Code of Conduct, in our sole discretion, by posting amended terms to the MerchCat.com website. Your continued use of the Service indicates your acceptance of the amendments.
• When using the Service, activities that are not permitted include, but are in no way limited to, the following:
• to act in an abusing or threatening way;
• to intimidate or impersonate anyone;
• any illegal acts;
• any infringement of intellectual property rights;
• any commercial activities not approved in writing by Merch Cat
• You will not post, email, or otherwise make available Content:
• that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way;
• that is pornographic;
• that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
• that impersonates any person or entity, including, but not limited to, a Merch Cat employee, or falsely states or otherwise misrepresents your affiliation with a person or entity;
• that includes personal or identifying information about another person without that person’s explicit consent;
• that is false, deceptive, misleading, or deceitful;
• that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
• that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement;
• that constitutes or contains any form of advertising or solicitation;
• that includes links to commercial services or web sites;
• that advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law;
• 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;
• that disrupts the normal flow of dialogue with an excessive amount of Content (flooding attack) to the Service, or that otherwise negatively affects other users’ ability to use the Service; or
• that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Service.
• You agree not to:
• contact anyone who has asked not to be contacted;
• “stalk” or otherwise harass anyone;
• collect personal data about other users for commercial or unlawful purposes;
• use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service – unless expressly permitted by Merch Cat ;
• post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
• attempt to gain unauthorized access to Merch Cat’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service or Merch Cat website; or
• use any form of automated device or computer program that enables the submission of postings on Merch Cat without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals, or engage in any other acts which could be considered “gaming the system”.
