Terms and Conditions for Sellers through the Merch Engine Marketplace

Effective date: January 20, 2022

These terms and conditions are the contract between you and Merch Engine, a division of Splash Marketing Solutions, Inc. ("us", "we", etc). By visiting or using Our Website, you agree to be bound by them.

We are Merch Engine, a division of Splash Marketing Solutions, Inc., incorporation number 2021443219, incorporated in Alberta, Canada. Our registered office is at 1-1247 36 Ave NE, Calgary, AB, Canada.

1. Definitions

"Royalty Payment" means the royalty we pay you, calculated as a flat rate per product sold with your design made by you through us, net of GST/HST.
"Content" means the textual, visual or audio content that is encountered on Our Website. It may include, among other things: text, images, sounds, videos and animations. It includes content Posted by you both directly to offer your Products for sale and indirectly, for any other purpose.
"Device" includes any computer, device, work station, electronic application or electronic receiving device.
"Base Price" means the cost of the product, this includes our overhead, machine maintenance, cost of material, shipping materials, etc.
"Our Website" means any website or Service designed for electronic access by mobile or fixed Device which is owned or operated by us. It includes all of the hardware and software installations that enable our website to function.
"Post" means place on or into Our Website any Content or material of any sort by any means.
"Product" means any item offered for sale by you on Our Website, whether physical goods or downloads, together with all supporting text, and information in any medium.
"Service" means all of the services available from Our Website, whether free or charged. For the sake of good order "Service" does not include any service offered for sale on Our Website by any person other than us.
"Marketplace" means our Website which enables a user of a Device to purchase and/or customize products using that Device via the Internet.

2. Interpretation

In this agreement unless the context otherwise requires:

  • a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
  • a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.
  • a reference to a person includes reference to that person's successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or passed as a result of a merger, division, reconstruction or other re-organisation involving that person.
  • the headings to the paragraphs and schedules (if any) to this agreement are inserted for convenience only and do not affect the interpretation.
  • any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing;
  • except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person;
  • in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.
  • all money sums mentioned in this agreement are calculated net of GST/HST, which will be charged when payment is due according to local Government laws.

3. Our contract

  • The relationship between us is solely that:
    • in consideration of the Base Price by us, we provide for you an Internet marketplace as an arm's length contractor.
    • we act as your agent solely in the collection of money paid by your buyer and fulfilling their order
    • we are not, partners or joint venturers.
  • If you place a Product for sale on Our Website, you do so subject to these terms.
  • In consideration of the Base Price and the Royalty Payment, we provide for you a Marketplace accessible via www.merchengine.ca. The amount of the Base Price and the Royalty Payment are set out in the Product Royalty Schedule, placed on Our Website.
  • We may change this agreement in any way at any time. We will notify our Marketplace sellers via e-mail, and any such modification will be effective upon public posting. Your continued use of our Service and this Site following any such modification constitutes your acceptance of these modified Terms.
  • In contracting with users of Our Website, we make certain assumptions as to your compliance with the law and to the procedures set out on Our Website and named the "Service Level Commitment". You agree to comply with those procedures.
  • Insofar as we provide points of guidance on Our Website, relating to product delivery, returns, payments and other practical matters, such guidance is not to be interpreted as appropriate to your particular Products or circumstances. They do not differentiate between the compliance requirements of different merchants nor do they cover exclusions which may apply to you or to some of your Products. Accordingly, your compliance must be provided by:
    • your business procedures;
    • all of the pre-purchase information you give to prospective buyers;
    • the content on your website.
  • Although we are not a party to your contract with a buyer introduced to you via Our Website, we shall remove your Products from offer if a customer or site visitor has a valid complaint against you.
  • Subject to this agreement and to the procedures set out on Our Website, you may enter a Product for sale through Our Website.

4. Your licence to us

  • You now warrant that:
    • you have the authority to enter into this agreement and bind the person or organisation named by you as the seller and licensor;
    • you own the copyright in all Content you may Post to Our Website or that you have the permission of the owner to use it and to grant this licence to us.
    • you know of no lawful reason why any person should object to or claim for infringement of, any intellectual property right relating to any Content you may Post.
  • In Posting data through our Service you grant to us an irrevocable, sub-licensable, licence to display your Product in images and text in the public domain. In doing so you understand and accept that we shall grant a sub-licence to any business in any terms we may from time to time decide, to also print your products on our behalf.
  • We will use that licence only for commercial purposes in reference to Merch Engine and will stop using it after you have removed the individual product or deleted your account.
  • You agree to waive of your right to be identified as the author and your right to object to derogatory treatment of your Content as provided in the Copyright Act,
  • Posting Content does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
  • You understand that you are personally responsible for your breach of intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you;
  • You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
  • Please notify us of any security breach or unauthorised use of your account.

5. Your Product placement

You agree:

  • not to re-post any Product we remove from offer for sale.

6. Your account and personal information

  • When you visit Our Website, you accept responsibility for any action done by any person in your name or under your account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.
  • You agree that you have provided accurate, up to date, and complete information about yourself. We are not responsible for any error made as a result of such information being inaccurate.
  • You agree to notify us of any changes in your information immediately.
  • You agree to link your PayPal account and ensure it is validated. Any payments sent to the PayPal account you provided in error cannot be resent by Merch Engine. Merch Engine will not be liable for any loss suffered by you if you provide us with incorrect details in relation to the payment method.
  • If we are unable to pay you because you have given us incorrect details or your details are out of date, we will hold your margin for up to 6 months from the payment date. If you have not notified Merch Engine of any amendment to the payment method details in that time your margin proceeds will be forfeited to Merch Engine or donated to a charity of our choice.
  • We may terminate your account immediately and without notice to you if you fail to notify us of any such changes.

7. The selling procedure

  • You agree that a contract to sell a Product offered by you is a firm and binding contract as soon as your customer's payment has been accepted by our payment service provider.
  • Products may be offered for sale subject to any discount or promotion arranged between you and us.
  • Subject to discounts and promotions, Products are offered for sale at a fixed price, exclusive of GST/HST.

8. Excess Inventory

  • You grant Merch Engine permission to dispose or donate any inventory that becomes excess as a result of refunds, reprints, fraud, product sampling, or promotional activities in any manner we see fit.

9. Our Royalty Payment to you

  • We sell your Product at our predetermined pricing (or with a Brand Store, you set your own pricing that must be higher than our Base Cost), subject to these terms and to subject also the requirements we set out on Our Website from time to time.
  • Merch Engine will also charge the customer for the shipping which will be retained by us and not affect the amount to be distributed to you.
  • Our Base Price is payable on demand. You irrevocably authorise us to deduct them from sums paid to us by your buyer.
  • Our Website selling system is an automated system which can be followed by you through a "Store Manager Dashboard".
  • The proportion of each sale receipt retained by us is as set out elsewhere on Our Website.
  • We will pay you within 30 days of confirmed dispatch of order.
  • We will transfer money via PayPal, in full.
  • Each party is responsible for their own taxes associated with each transaction and will account for any taxes imposed by governments or governing authorities, and related accounting or audit requirements arising out of, as a result of, incidental to, or in connection with obligations under this Seller Terms and Conditions. We recommend that you consult with your tax advisor as to the application of taxes for you, as the seller of the merchandise. This may include Sales Tax, VAT, GST and other transactional taxes;
  • Merch Engine will not collect or pay taxes on your behalf as Merch Engine is merely acting as an agent in facilitating the sale of your Product to the customers. The amounts distributed to you will be deemed to be inclusive of any taxes, if applicable. You will at all times be solely responsible for reporting and remitting any tax liabilities arising out of the sale of your Products together with any potential interest or penalties that any tax authority may levy as a result of non-compliance.
  • All tax-related reporting responsibilities by you to relevant tax authorities are entirely your responsibility.
  • If we do or could earn interest on any cash balance in our control for the period between payment by a customer and our accounting to you, we are free to keep that interest and have no obligation to account for it to you.
  • If an action by a buyer results in a charge back to our account, you agree that we may deduct the Royalty payment from any sum due to you.
  • If we accept any return from a customer and consequently refund their payment, we are not obliged to repay Royalty to you.
  • If in our discretion we believe that your performance as a seller results in a significant number of charges back and / or buyer disputes or if we believe you are in breach of this agreement, we are free to hold back payments to you until we are satisfied that disputes have been settled and / or breach rectified.

10. Advertising your Product

Using our service you accept our offer to advertise market or promote your Product, the following conditions apply.

  • We give no guarantee as to the success of any advertising placed.

11. Your Product warranties

You warrant that:

  • any Product you place on Our Website for sale:
    • does not infringe the intellectual property rights of any person;
    • does not offend against the law of any country whose citizens might purchase it;
    • is not intended primarily to advertise any business, except your business, so far only as it is carried on through Merch Engine.
  • you own the intellectual property rights in any Product you place on Our Website for sale, or that you have the permission of the copyright owner:
    • to place the Product on Our Website for sale;
    • to receive the net proceeds of such sales as arise;
    • to defend the copyright in the Product.

12. Indemnity

You agree to indemnify us against any loss, damage or liability, suffered by us at any time and arising out of:

  • any act, neglect or default of yours in connection with this agreement or with any Product of yours or with your use of our Services;
  • your breach of this agreement;
  • your failure to comply with any law;
  • any act, neglect or default by any agent, employee, licensee or customer of yours;
  • a contractual claim arising from your use of the Services

This indemnity shall include all costs reasonably incurred by us without the need to prove they were necessary.

13. Restrictions on what you may Post to Our Website

We invite you to contribute Content to Our Website in several ways, as for example to upload information and sales material to promote your products/services. We have to regulate your use of Our Website to protect our business and our staff, to protect other users of Our Website and to comply with the law. These provisions apply to all users of Our Website.

We do not undertake to moderate or check Content Posted, but we do protect our business vigorously. If we believe Content Posted breaches the law, we shall co-operate fully with the law enforcement authorities in whatever ways we can.

You agree that you will not use or allow anyone else to use Our Website to Post Content, upload Content or undertake any activity which is or may:

  • be unlawful, or tend to incite another person to commit a crime;
  • be obscene, offensive, threatening, violent, malicious or defamatory;
  • be sexually explicit or pornographic;
  • be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
  • use a Posting to solicit responses unconnected with the purpose of Our Website or the terms proposed by this agreement.

14. Your Posting: restricted content

In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms.

In addition to the restrictions set out above, a Posting must not contain:

  • hyperlinks, other than those specifically authorized by us;
  • keywords or words repeated, which are irrelevant to the Content Posted.
  • the name, logo or trademark of any organisation other than yours.
  • inaccurate, false, or misleading information;
  • material or links to material that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under 18 years old.

15. Removal of offensive Content

  • We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
  • If you are offended by any Content, the following procedure applies:
    • Your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
    • we shall remove the offending Content as soon as we are reasonably able;
    • after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
    • we are free to either re-instate your content, or not, as we decide.

16. Security of Our Website

If you violate Our Website we shall take legal action against you.

You now agree that you will not, and will not allow any other person to:

  • modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
  • link to our site in any way that would cause the appearance or presentation of the site to be different from what would be seen by a user who accessed the site by typing the URL into a standard browser;
  • download any part of Our Website, without our express written consent;
  • collect or use any product listings, descriptions, or prices;
  • collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
  • aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of the Services;
  • hide or remove the banner advertisements on any page of Our Website;
  • share with a third party any login credentials to Our Website;
  • Despite the above terms, we now grant a licence to you to:
    • create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any Product or Service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
    • you may copy the text of any page for your personal use in connection with our business.

17. Storage of data

  • You agree that bandwidth and storage requirement shall not exceed a reasonable amount provided to you.
  • We maintain reasonable procedures for general backup of data for our own purposes but we give no warranty that your data will be saved or backed up in any particular circumstances unless we have made specific contractual arrangements with you in writing.

18. Copyright and other intellectual property rights

  • All Content on Our Website, for example page text, graphics, logos, images, audio clips, digital downloads, data compilations, and software, is the property of either us or our affiliates or suppliers of products for sale. It is all protected by international copyright laws.
  • You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, except as is expressly permitted in this agreement or with our written consent.
  • For the sake of good order you should note that copyright exists in compilations and graphic images, shapes and styles, as well as in raw text.

19. Disclaimers and limitation of liability

  • The law differs from one country to another. This paragraph applies so far as the applicable law allows.
  • All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
  • We make no representation or warranty that our Service will be:
    • useful to you;
    • of satisfactory quality;
    • fit for a particular purpose;
    • data-secure;
    • available or accessible, without interruption, or without error.
  • We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
  • We shall not be liable to you for any loss or expense arising out of or in connection with your use of Our Website, which is indirect or consequential loss, or economic loss or other loss of turnover, profits, business or goodwill. This applies whether in an action of contract, negligence or otherwise, even if such loss was reasonably foreseeable or we knew you might incur it.
  • We will do all we can to maintain access to Our Website, but it may be necessary for us to suspend all or part of our Service for repairs, maintenance or other good reasons. We may do so without telling you first.
  • You acknowledge that our Service may also be interrupted for reasons beyond our control.
  • You agree that we are not liable to you for any loss whether foreseeable or not, arising as a result of interruption to our Service.
  • You now expressly release us from any and all claims and liability known and unknown, arising in any way from a dispute between you and a buyer.
  • Our Website contains links to other Internet websites. We have neither power nor control over any such website. You acknowledge and agree that we shall not be liable in any way for the content of any such linked website, nor for any loss or damage arising from your use of any such website.
  • Our total liability under this agreement, however it arises, shall not exceed the sum of $5,000. This applies whether your case is based on contract, tort or any other basis in law.
  • This paragraph (and any other paragraph which excludes or restricts our liability or provides an indemnity to us) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
  • If you become aware of any breach of any term of this agreement by any person, please tell us by contacting us via our Contact Us form. We welcome your input but do not guarantee to agree with your judgement.
  • Nothing in this agreement shall be construed as limiting or excluding our liability for death or personal injury caused by our negligence.

20. Miscellaneous matters

  • If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
  • The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
  • No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
  • Any communication to be served on either of the parties by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail.
It shall be deemed to have been delivered:
if delivered by hand: on the day of delivery;
if sent by post to the correct address: within 72 hours of posting;
If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
  • In the event of a dispute between us, you undertake to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation.
  • In the event of any conflict between any term of this agreement and the provisions of the articles of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.
  • The validity, construction and performance of this agreement shall be governed by the laws of the Province of Alberta and the parties agree that any dispute arising from it shall be litigated only in the Province of Alberta.