TERMS OF SERVICE
Last updated on June 15, 2016
1.1. Governing Agreement
The terms of this agreement (“Terms of Service” or “Terms”) govern the relationship between
you and Merchbar (hereinafter “Merchbar” or “us” or “we”) regarding your use of our services, which include applications for mobile devices and Merchbar branded websites (the “Service”). In this agreement, “Merchbar” means Merchbar, Inc., a Delaware corporation, located at 182 Howard Street, Suite 212, San Francisco, California 94105-1611. “Merchbar” includes Affiliates, which shall mean subsidiaries, parent companies, joint ventures and other corporate entities under common ownership.
This agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
1.4. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Terms of Service and any other relevant Merchbar policies, Merchbar grants you a non-exclusive, non-transferable, revocable limited license, subject to the limitations set forth herein, to access and use the Service using a Merchbar supported web browser or mobile device solely for your own purposes.
1.5. Accessing the Service
You may also be required to register an account on the Service (an “Account”) and/or have an
account with the applications provider for your mobile device. You represent and warrant that you are not prohibited from receiving products of U.S. origin, including services, software or any merchandise or products purchased through your use of the Service. If you are between the ages of 13 and 17, you represent and warrant that your legal guardian has reviewed and agreed to these Terms.
You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component.
You are responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.
1.6. Use of the Service
The following restrictions apply to the use of the Service:
a. You shall not create an Account or access the Service if you are under the age of 13.
b. You shall monitor your Account to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors in connection with your Account. You are responsible for any use of your credit card or other payment instrument by minors.
c. You shall not have more than one Account at any given time and shall not create an account using a false identity or information, or on behalf of someone other than yourself.
d. You shall not create an Account or use the Service if you are a convicted sex offender.
e. You shall not have an Account or use the Service if you have previously been removed by Merchbar.
f. You shall not use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department’s list of Specially Designated Nationals.
g. You shall use your Account only for non-commercial purposes.
h. You shall not use your Account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages to anyone.
i. You shall not use your Account to engage in any illegal conduct.
j. You shall not sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without the written permission of Merchbar.
k. You shall not access or use an Account that has been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original Account creator without Merchbar’s permission.
1.7. Account Information
When creating or updating an Account on the Service, you may be required to provide Merchbar with certain personal information, which may include your name, birth date, e-mail address, band preferences, music listening history, sizing information, item and band subscriptions, shipping address and, in some cases, payment information. This information will be held and
You understand that on certain Merchbar websites your user ID number, name and profile picture will be publicly available and that search engines may index your name and profile photo.
1.8. Username and Password
During the Account creation process, you may be required to select a username and a password (“Login Information”). The following rules govern the security of your Login Information:
a. You shall not share the Account or the Login Information, let anyone else access your Account, or do anything else that might jeopardize the security of your Account.
b. If you become aware of or reasonably suspect any breach of security, including any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify Merchbar and modify your Login Information.
c. You are solely responsible for maintaining the confidentiality of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you.
d. You are responsible for anything that happens through your Account.
Merchbar reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
1.9. License Limitations
Any use of the Service in violation of the limitations contained herein is strictly prohibited, can result in the immediate revocation of your limited license granted herein, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH THE SERVICE IS A VIOLATION OF MERCHBAR POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
a. Engage in any act that Merchbar deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms or other policies.
b. Make improper use of Merchbar’s support services, including by submitting false abuse reports or using profane and abusive language in your communications with our support personnel.
c. Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation.
d. Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third party software designed to modify or interfere with the Service.
e. Use the Service in order to design or assist in the design of cheats, automation software, bots, hacks, mods or any other unauthorized third party software designed to modify or interfere with the Service.
f. Without Merchbar’s express written consent, modify or cause to be modified any files that are a part of the Service.
g. Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”), or (2) the enjoyment of the Service by any other person.
h. Institute, assist or become involved in any type of attack, including distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service.
i. Attempt to gain unauthorized access to the Service, accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by Merchbar, including by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service.
j. Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive.
k. Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content.
l. Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse or harm of another person, group, including Merchbar employees or customer service representatives.
m. Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a Merchbar employee.
n. Without Merchbar’s express written consent, use the Service or any part thereof for any
commercial purpose, including communicating or facilitating any commercial advertisement or solicitation.
o. Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items.
p. Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms of Service.
q. Use any unauthorized third party software that accesses, intercepts, “mines”, or otherwise
collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about Merchbar users or content. Merchbar may, at its sole and absolute discretion, allow the use of certain third-party user interfaces.
r. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server, or the Service, whether through the use of a network analyzer, packet sniffer or other device.
s. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure.
t. Bypass any robot exclusion headers or other measures we employ to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data.
u. Use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service, or (2) any connection using programs, tools, or software not expressly approved by Merchbar.
v. Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Merchbar.
w. Copy, modify or distribute rights or content from any Merchbar site, or Merchbar’s copyrights
or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service.
x. Solicit or attempt to solicit personal information from other users of the Service.
y. Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
z. Upload or transmit or attempt to upload or transmit, without Merchbar’s express permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.10. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR MERCHBAR SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND MERCHBAR IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO THE SERVICE AND OUR SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
Merchbar reserves the right to stop offering and/or supporting the Service or a particular part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, Merchbar shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.
Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may cancel any Account registered to you at any time by following the instructions at www.merchbar.com.
The Service (including without limitation any titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, and chat transcripts) are owned by Merchbar, Inc. Merchbar reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, related to the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF MERCHBAR. GENERALLY, ACCOUNTS CREATED WITH MERCHBAR WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
1.11.3. User Content
“User Content” means any communications, images, sounds, and all the material, data, and
information that you upload or transmit through a Merchbar client or the Service, or that other users upload or transmit, including without limitation any chat text.
2. USER CONTENT
2.1. Content Screening
You are entirely responsible for all User Content you post or otherwise transmit via the Service. We assume no responsibility for the conduct of any user submitting any User Content nor monitoring the Service for inappropriate or illegal content or conduct.
We have no obligation to monitor User Content. If we choose at any time, in our sole discretion, to monitor the Service, we have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and we may monitor and/or record your interaction with the Service or communications (including without limitation chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.
2.2. Information Use by Other Members of the Service
2.2.1. Public Discourse & Unsolicited Ideas
The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. Merchbar cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service. Merchbar shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
If you submit suggestions, proposals, comments or other ideas or materials (collectively “Submissions”) within the Service you understand and agree that Merchbar (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
MERCHBAR IS NOT RESPONSIBLE FOR A MEMBER’S MISUSE OR
MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST OR SHARE IN CONNECTION WITH THE SERVICE.
2.2.2. Responsible For Your Own Content
You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others.
Information, materials, products or services provided by other users may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service, and Merchbar assumes no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please contact us promptly using the contact information at the end of these Terms of Service or through a customer support link within the Service.
Merchbar may reject, refuse to post or delete any User Content for any or no reason. Merchbar reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.
2.4. User Interactions
2.4.1 Member Disputes
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service. Merchbar reserves the right, but has no obligation, to become involved in any way with these disputes.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from liability for any potential claims, demands and damages (actual and consequential) of any kind or nature, known or unknown, arising out of or in any way related to such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you acknowledge that you understand, expressly waive any rights that you have under, California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
3. THIRD PARTY ADVERTISING
3.1. Third Party Advertisements
3.2. Links to Third Party Sites and Dealings With Advertisers
Merchbar may provide links on the Service to third-party websites or vendors who may invite you to participate in promotional offers in return for receiving an optional component of the Service, upgrades to the Service or additional services. Any charges or obligations you incur in your dealings with these third parties are solely your responsibility. Merchbar makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third-party content, goods and/or services. Such linked sites are not under the control of Merchbar and may collect data or solicit personal information from you. Merchbar is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Merchbar of these linked sites.
4. COPYRIGHT NOTICES/COMPLAINTS
It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Merchbar reserves the right to terminate without notice any user’s access to the Service if that user is determined by Merchbar, in its sole discretion, to be a “repeat infringer.” In addition, Merchbar accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
5. UPDATES TO THE SERVICE
You understand that the Service may change over time. Merchbar may require that you accept updates to the Service you may access on the Internet or have installed on your computer or mobile device. You acknowledge and agree that Merchbar may update the Service without notifying you. You understand and acknowledge that you may need to update third party software from time to time in order to receive the Service.
Descriptions, images, references, features, content, specifications, products, price and availability of any Products are subject to change without notice. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see may depend on the mobile device or computer on which you access the Service, and we cannot guarantee that the color will be accurately displayed.
It is your responsibility to ascertain and obey all applicable local, state, federal and international laws in regard to the possession, use and sale of any Product purchased through the Service. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to (i) limit the available quantity of or discontinue any Product, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or similar promotions, (iii) bar any user from making any purchases, or (iv) to refuse to provide any Product to any user.
6.2 Prices and Availability; Orders
The prices and availability of Products are subject to change without notice. After placing an order, you will receive an email from us acknowledging that we have received your order (an “Order Confirmation”). Please note that receipt of an Order Confirmation does not mean that your order has been accepted. Your order constitutes an offer from you to purchase a Product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an email confirming the shipment of your order (a “Shipping Confirmation”). An agreement has not been reached between us until we send you a Shipping Confirmation, which agreement will apply to only those products appropriately identified in the Shipping Confirmation. We reserve the right to cancel your order, in whole or in part, at any time before a Shipping Confirmation is sent and we may rescind our acceptance and cancel your order if there is an error in price or if any of the Products ordered are no longer available.
In states where we have no physical presence, we may not be required to collect and remit sales tax for purchases of Products. However, some states require that their residents file a sales or use tax return for items purchased through the Service. You should consult your state and local tax laws or a CPA to determine compliance with tax laws and regulations in your area. In some states we may collect and remit sales tax. For purchases where sales tax is applicable, you will see the tax calculated on the checkout page before you are asked to confirm the purchase. We use commercially reasonable efforts to calculate, collect and remit the correct amount of tax required on each taxable purchase, but we do not guarantee the accuracy of such amount. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you hereby waive any right to any claims you may have or develop regarding the amount of tax we collect from you in connection with the purchase of any Products and you further agree to hold Merchbar, its officers, directors, employees, agents and representatives harmless for any harm or other damages you may incur as a result of any such error.
Most Product orders are shipped within twenty-four hours after the placing of an order. The final shipping cost and estimated delivery time applicable to a Product order will be available to you during checkout. Please note that some items may require a longer ship-out and/or delivery timeframe. We are unable to provide you with the option to specify your carrier of choice. International deliveries may incur additional charges to cover duty, VAT and an international service fee to cover additional fulfillment costs incurred by Merchbar for such orders.
6.5 Risk of Loss
The risk of loss for any Products purchased by you via the Service shall pass to you upon tender of the item to the applicable shipment carrier.
If you are not completely satisfied with a Product (other than a Product in digital format), you may return it to us for any reason within 30 days after the date of payment therefor. Products in digital format may not be returned. To be eligible for a refund, your Product must be returned within 30 days after the date of payment therefor in saleable condition, along with the original packaging, including Universal Product Code (UPC), your receipt or packing slip, and any additional materials accompanying the Product upon your original receipt of delivery. If appropriate, we will refund your purchase by check or by credit to the account used for payment, at our option. Products that we receive from you that are ineligible for a refund will be sent back to you at your cost.
6.7 Manufacturer’s Warranties
Merchbar does not offer warranties on any Products. However, some Products available through the Service may be covered by a warranty provided by the manufacturer of such Products. Such manufacturer’s warranties, if any, may be included with a Product when shipped or may be
available at the manufacturer’s website. To obtain the benefit of any such manufacturer’s
warranty, if any, you must follow the instructions in the applicable warranty and deal directly with the applicable manufacturer.
6.8 Information Sharing
7. DISCLAIMERS; LIMITATIONS; WAIVERS; INDEMNIFICATION
7.1. DISCLAIMER OF WARRANTIES
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT THE SERVICE AND ALL PRODUCTS OFFERED AND SOLD IN CONNECTION WITH THE SERVICE ARE PROVIDED BY MERCHBAR ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSELY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER MERCHBAR NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “MERCHBAR PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED
7.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MERCHABAR PARTIES DISCLAIM ANY AND ALL LIABILITY FOR ANY DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE IN ANY JURISDICTION AND UNDER ANY UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, TORT (INCLUDING NEGLIGENCE) OR BREACH OF WARRANTY OR CONTRACT, AND THAT THE MERCHBAR PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING FOR LOSS OF PROFITS OR GOODWILL.
YOU FURTHER ACKNOWLEDGE THAT THE MERCHBAR PARTIES WILL NOT BE HELD LIABLE FOR, NOR WILL YOU SEEK TO HOLD THE MERCHBAR PARTIES LIABLE FOR, THE CONDUCT OF ANY THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL BSUINESSES OR WEBSITES, AND THAT YOU ASSUME THE ENTIRE RISK OF USE OF THE FOREGOING.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL THE MERCHBAR PARTIES BE LIABLE TO YOU FOR AN AMOUNT ABOVE THE AMOUNT YOU HAVE PAID TO MERCHBAR IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM OR CUASE OF ACTION.
You agree to indemnify, defend and hold harmless Merchbar, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any and all claims, losses, damages, liabilities, including legal fees and expenses, arising out of or related to your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein. Merchbar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Merchbar, and you agree to cooperate with Merchbar’s defense of any such claims or causes of action. Merchbar will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account(s) or use of the Service.
8. DISPUTE RESOLUTION
If a dispute arises between you and Merchbar, we aim to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Merchbar agree that we will resolve any dispute or controversy at law or equity that arises out of these Terms or your use of the Service (a “Dispute”) in accordance with one of the choices below or as we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve a Dispute through alternative dispute resolution procedures.
8.2. Governing Law; Choice of Forum
These Terms and any Disputes shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. You agree that any Dispute will be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by us or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
8.3. Arbitration Option
Upon mutual agreement of the parties hereto, we may elect to resolve any Dispute in a cost effective manner through binding arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon the parties. In such a circumstance, any judgment or the award rendered by the ADR provider shall be final and binding.
10. GENERAL PROVISIONS
10.2. Supplemental Policies
Merchbar may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
10.3. Entire Agreement
10.4. No Waiver
Except as expressly and specifically set forth herein, none of our representations, statements, consents, waivers, or other acts or omissions shall be deemed a modification of these Terms nor be legally binding, unless otherwise stated in writing.
10.7. Equitable Remedies
You acknowledge that the rights granted and obligations created under these Terms are of a unique and irreplaceable nature, the loss of which shall irreparably harm Merchbar and which cannot be replaced by monetary damages alone. Accordingly, Merchbar shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
10.8. Force Majeure
Merchbar shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Merchbar, including without limitation those due to unforeseen circumstances or cause beyond Merchbar’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
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