Terms And Conditions

Subscription Agreement

1. Definition

In this license (and in our website to the extent it is referred to in this license) the highlighted words have the meanings respectively set out in the Appendix where the context permits.

2. Parties

This agreement is made online on the date of acceptance between us, Merchi Pty Ltd and you, the party described in the completed particulars you have supplied on either our "online signup" Website page or our selling partners "sign-up" website.

3. Consideration

The consideration for this license is the subscription fee applicable to the plan and options chosen by you and other payments to be made to us for use of Merchi and Merchi services.

4. Formation of the license and your acceptance

4.1 This license was entered into online on the date of acceptance when you completed the details relating to yourself on either the "sign-up page" of our website or selling partners sign-up website and made the initial payment for your chosen plan and you accepted our offer of a license when you selected "I agree to Terms & Conditions" checkbox on the relevant website. You were then subscribed by us and granted the right to use Merchi in accordance with this license.

4.2 It is a condition of the grant of the License that you establish your credit facility as provided in the Merchi Billing section of your Company profile, by so doing, you give authority to us to withdraw from it all amounts becoming due to us under this License.

4.3 You agree unconditionally not to repudiate nor dispute nor seek a refund of any amount paid to us by your credit card provider. If any dispute arises you must only use the provisions of clause 18 "Disputes and Governing Law" of this License.

5. Grant of License

Subject to the terms of this license we hereby grant to you a non-exclusive license in common with others to-

• Use Merchi as an online repository of information about the merchandise industry and customers with whom you do business; communicate with other licensees of Merchi; and
• Use Merchi in accordance the plan you have chosen for carrying on business as a supply centre and conduct transactions with and supply goods and services to customers.
• Use and explore the functionality of Merchi to create new initiatives for doing business; If you so choose, to use the Merchi Services described on the website.

6. Payment for Plans, Features and Merchi Services

6.1 You must pay to us the charges for the plan, features and Merchi services chosen by you from the pricing terms as and when they become due in AUD.

6.2 You irrevocably authorise us to draw on your credit facility for all monies becoming due to us as charged in our monthly billings to you which will show all details of your activity under the license.

6.3 If we are not able to process your monthly payment using your Authorised Payment Method, we will make a second attempt to process payment 7 days later. We will continue to attempt to process the payment every 7 days. If after 31 days the payment has not been successful, we will suspend and revoke access to your Account and Merchi Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle.

6.4 You may change the plan, features or Merchi Services you have chosen at any time, even before your current plan has expired, in which case the review date will remain the anniversary of the original date of acceptance. Fees applicable to the new services apply from the date you choose them. Billing is calculated on usage and discounted depending on the selected plan. The user can add and remove service entities and features as well as change plans at any time.

6.5 Upon the grant of this license the first payment due by you shall be taken from the credit card to cover connection costs and is in no circumstances refundable.

7. Term, renewal and termination of this license.

7.1 Subject to clauses 7.3 and 14.2 the term of this agreement shall commence on the date of acceptance and conclude on the first review date provided that-

• If neither you nor we have given notice to terminate this license; and
• You are not in arrears of payment of any monies then due to us; and
• You are not otherwise in beach of any condition of this License

then, the License shall be deemed to have been renewed until the next review date.

7.2 Any renewal shall be upon the terms of our then current license for Merchi and the applicable pricing terms then current as they appear on our website.

7.3 Subject to clause 7.2 this License may be terminated by either party giving 30 days notice. If you intend to terminate You must do so by logging into your Merchi account and browsing to Company > Merchi Billing > Change / Upgrade Subscription and follow the instructions provided.

7.4 We may, in our absolute discretion, terminate this license immediately if You -

• fail to pay any monies due to Us when they become due.
• fail to have a current Plan or credit facility
• are in breach of any term of this License and, such breach, being capable of remedy is not remedied within 14 days of Your being notified to do so by Us.
• become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration.
• being a partnership, dissolve, threaten or resolve to dissolve or is in jeopardy of dissolving.
• being a natural person, dies; or
• Cease or threaten to cease conducting Your business in the normal manner.

In any of these cases no refund of subscription fee will be payable to you or any person claiming under or through you and any debts incurred by you to us from your use of Merchi will remain valid and payable and in no way be affected.

7.5 If this License is terminated for any reason, we shall archive your company profile and linked entities, including: domains, users, products, domain clients and deny them access to Merchi and any Merchi Services, and in addition, We-

• will cease to maintain your orders and customer details;
• may require return of and repossess any copies of Merchi marketing material in your possession, custody or control;
• may be regarded as discharged from any further obligations under this license to you or any person claiming through you; and
• may pursue any additional or alternative remedies provided by law.

8. Conditions of Use of Merchi

8.1 You acknowledge that we provide Merchi on an "as is" and "as available" basis. Nothing in this license shall, nor may be construed as, a representation, promise or warranty by us that the functionality or operation of Merchi will be uninterrupted or free of errors and inaccuracies, meet your, your Domain Clients or customers requirements or expectations or operate in the configuration or with the hardware or software used.

8.2 You further acknowledge that Merchi may contain copyright or trademarked products that are the subject of agreements between us and their owners. Your use of Merchi is at all times subject to the terms for the use of such material including substitute material contained in the copyright license.

8.3 You further acknowledge and agree that Merchi (as with technology generally) may have errors (or "bugs") and may encounter unexpected problems. Accordingly, you may experience downtime and errors in the use and operation of Merchi. You are expected to put in place (and advise Your Domain Clients and customers to put in place) reasonable procedures and processes to minimize any inconvenience and any adverse impact of any downtime or error.

8.4 We do not control the flow of data and information through the internet, and the flow depends on the performance of persons and entities whose actions or inactions may produce situations in which connections to the internet (or portions thereof) are impaired or disrupted and therefore we cannot be held responsible or liable for malfunction of your internet connection.

8.5 We do not warrant that any media, catalogue, catalogues data, information or other content provided in Merchi is complete or accurate.

8.6 You grant to us the right to enter your website used for the operation of Merchi and where applicable Your Domain Clients' website for the purposes only of ensuring compliance with the terms of this license and to provide any Merchi Services.

8.7 Any taxes that you may be subject to as a result of using Merchi are your responsibility to discharge in accordance with any laws that are applicable in the jurisdiction that you may be operating from or into.

8.8 Personal data collected as a result of using Merchi must not be used in any manner that contravenes any laws applicable to the use of personal data in the countries where that data originates and/or where the licensee and/or any associated Domain Store, resides.

9. Training

9.1 During the term of this license, we will make available to you and your employees and Domain Clients such information and reasonable limited support in the use of Merchi as we consider necessary to enable you to establish your website and operate your Supply Centre and your Domain Store's stores efficiently.

9.2 It is your responsibility to engage technically competent persons to operate your business who are receptive to the technical training and information provided and can adequately communicate on your behalf with us in relation to all aspects flowing from the grant of this license.

10. Intellectual Property Rights

10.1 Ownership of all intellectual property rights in Merchi (whether or not incorporated within it) remain with the present owners and do not become your property or that of any person claiming through you. This license does not grant any other right title or interest in or to any property rights of the owner.

10.2 You must ensure that, where required by us, any website using Merchi, including any Domain Store, carries the logos of Merchi in proximity to the words "Powered by Merchi” in the form we provided to you. The copyright in the logos which are registered trademarks remains with the owner.

10.3 Ownership of your intellectual property rights in connection with the exercise of your rights under this license and operation of your business remain with you.

10.4 With the exception of copyright material, you hereby grant to us the unfettered right to use all and any of your intellectual property to any business process or methodology that is created as a result of using Merchi or in aid of further developing Merchi which grant extends to authorizing its use by any other licensee of Merchi.

10.5 If you and your Domain Clients use images and designs from the Merchi libraries, you and your Domain Clients must only do so strictly in accordance with the terms and conditions of the copyright license.

10.6 Catalogues provided by Merchi contain information and structure that is our intellectual property. In exercising your usage rights under this license, you may only use or copy catalogues provided by us for use within Merchi. Any use of catalogues other than as part of Merchi is strictly forbidden and will constitute a breach of the terms of this license.

11. Confidentiality

11.1 Neither you nor we shall, without the prior written approval of the other, disclose the other's confidential Information.

11.2 Neither you nor we shall be in breach of this clause in circumstances where it is legally compelling to disclose the other's confidential information.

11.3 You and we must take all reasonable steps to ensure that our respective employees, agents and any sub-contractors engaged for the purposes of this license do not make public or disclose the other's Confidential Information.

11.4 The provisions of clauses 10 and 11 survive any termination of this License.

12. Engaging Domain Clients

12.1 Should you subscribe to a plan that enables you to engage Domain Clients, You may at any time and from time to time during the term enter into an Domain Store's Agreement giving authorization to a person of good repute to access Merchi and establish a website (Domain Store) at which Customers may place orders for delivery from your Supply Centre. Merchi contains procedures for completing a Domain Store's agreement that must be entered into before the Domain Store can be permitted to use the Domain Store section of Merchi. The terms of the Domain Store's agreement may not be varied without our prior consent. A Domain Store's authorization stems from your rights under this agreement only.

12.2 You must indemnify us against any liability arising out of the actions of all and any of your Domain Clients through use, misuse or abuse of Merchi and from any claims made by a customer or other person against them resulting from any dealings with or actions, defaults or failures of your Domain Store.

13. Your Responsibilities

Throughout the term you shall at your own cost be responsible for -

• maintaining sufficient funds on your credit facility to meet any payment due to us
• all telecommunication lines, modems, communication controllers, routers, multiplex service terminals and other equipment both hardware and software necessary to access and use Merchi;
• providing local support to Your Domain Clients and their customers
• conducting your Supply Centre and all running expenses associated with your business and the supply and delivery of all merchandise ordered by customers from you
• complying with all laws, regulations and rules in both your and your Domain Store's jurisdictions
• maintaining adequate insurance (including product liability insurance) in respect to any liability you might incur in connection with the operation of Your Supply Centre and the exercise of your rights under this License
• complying with recommendations and guidelines issued by us from time to time with respect to Merchi.
• ensure that personal data is used in accordance with clause 8.8 and not provided to any third party not bound by that clause.

14. Restrictions on you in using Merchi

14.1 Throughout the term you must not, and you must not assist nor procure others including any Domain Store's or Customer's to

• use Merchi for any illegal or improper purpose or use or attempt to use it in a manner that infringes the Property Rights of any of its owners
• bring Merchi into disrepute or abuse the privileges of any other licensee of Merchi
• overload Merchi nor copy pages therefrom, impersonate another person nor interfere with any other person's access and rights to use Merchi.
• access nor use nor permit the use of Merchi to create author or, design, manufacture, publish or transmit, nor broadcast nor distribute any article or product that infringes the rights (including Intellectual Property Rights and Copyrights) of any person or is libellous, defamatory or slanderous
• condone or promote links to ransomware, cracks, hacks or along similar utilities or programs.
• permit the design, manufacture, publishing or transmitting of any material with racist, pornographic sacrilegious, sexist or other offensive content or which may threaten or denigrate any person or class of persons or exploits images of minors or encourages the use of illegal drugs or is in bad taste.
• use spam nor recorded telephone messages for marketing purposes nor use cause viruses, routines, robots, spiders or other processes or devices that interfere with or disrupt the normal function of computer programs controlling Merchi. Notwithstanding anything herein to the contrary, You may use email blasts in your marketing efforts. Should such email blasts create a functional issue with the operation of Merchi, We will notify you and endeavour to resolve it. If any spam or blast causes damage to Merchi, You will be liable to pay the full cost to remedy it.
• create or assist in the creation and/or development of a service or software program that is similar to Merchi or has a similar name.
• allow access to Merchi to persons who are owners, developers or providers of services or software programs that are similar to Merchi nor access to persons who may provide that access indirectly to other persons acting on their behalf.
• breach the Copyright License or be in breach of copyright in relation to any design or thing or wrongfully use or attempt to use or interfere with the Intellectual Property Rights of any person

14.2 Any breach of this clause or suspected wrongful interference with the operation of Merchi by you, your employees or your Domain Clients entitles us, in our absolute discretion, to terminate this license forthwith or to suspend its operation pending further enquiries without incurring any liability to you or any person claiming through you provided that any dispute arising between you and us relating to this Clause 14 must first be attempted to be resolved in accordance the provisions of clause 18.3.

15. Exclusion of Liability

In no event shall we be liable to you, a Domain Store, Customer nor to any person claiming through you or them in connection with this license including in respect of the use of (or failure or performance of) Merchi and/or in respect any goods and/or services, for malfunctions, failures, defects, acts or omissions or any other default or liability caused directly or indirectly by-

• any Third Party;
• you or your Domain Clients or Customers that were not expressly authorized by us
• accident, misuse or actions or abuse by anyone other than us;
• alteration or modification of Merchi, or any component or part of it, by anyone other than us
• products (including any hardware or software) or services not licensed, provided or supplied by us;
• power surge or failure;
• events of force majeure or events outside our control, or
• any other condition not arising under normal operating conditions;
• for any loss, cost, damage or expense of any nature arising or caused, directly or indirectly, from any breach of your, or your Domain Store's or Customer's obligations or responsibilities set out in this or any other collateral license
• for any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit; or
• incidental, indirect, consequential, special, exemplary or punitive damages.

whether such liability is asserted on the basis of common or civil law or in equity, pursuant to any statute, contract, or in tort (including negligence or strict liability) or otherwise and notwithstanding that we have been advised of the possibility of any particular loss or damage.

16. Indemnity

16.1 You must indemnify and release us unconditionally without set-off or adjustment, against and from

• any liability, loss, cost, expense or damage, including all legal fees, arising from or relating to your or your Domain Clients or customers use of Merchi and/or any media or content posted or uploaded by you including any alleged or actual violation of any law directly or indirectly arising from such use;
• any breach or alleged breach of this license;
• the misuse or misappropriation of any media or content; and
• any infringement or alleged infringement by you or your Domain Clients or Customers of any person's Intellectual Property Rights, rights of privacy or publication, or otherwise anywhere in the world.

16.2 Without limiting clause 16.1, because we do not and cannot control their actions, in the event that You have a dispute with a Domain Store or Customer, You must indemnify and hereby unconditionally release us without set off or adjustment, from and against any liability, loss, cost, expense or damage, including all legal fees, arising from or relating to, or in any way connected with, such dispute.

17. Disputes and Governing Law

17.1 You acknowledge that any payment made to us from your credit facility or in any other manner cannot be stopped, revoked or denied by you for any reason. The following provisions apply in relation to unpaid billings-

• if you seek credit from us, you must contact us and negotiate in good faith;
• if your credit facility has insufficient funds to pay for a billing due to us or it becomes invalid, you must contact us immediately and negotiate in good faith for alternative arrangements for making the payment;
• failure to communicate and negotiate with us to satisfactorily resolve any payment issue will result in this license being suspended or cancelled;
• suspension or cancellation of this license under this clause will not relieve you of liability to pay to us all amounts then or becoming due.

17.2 If you dispute or request relief or adjustment in respect of any payment made to us or our billings, You must follow the procedure prescribed in this clause 17.

17.3 If any dispute arises between us concerning this license, you and we must firstly attempt to resolve it by negotiation in good faith and if we cannot reach a settlement the dispute shall be submitted to arbitration in accordance with the rules of commercial arbitrations for the time being of a recognized arbitration organization of Australia. During such arbitration, both parties may be legally represented. This service is not free and each party must bear its own costs.

17.4 Prior to referring a dispute to arbitration pursuant to clause 17.3, you and we must -

• refer the dispute to our respective managers for resolution;
• if the managers have been unable to resolve the dispute after five (5) days (or such other period agreed between them) refer the dispute to our respective chief executive officers; and
• In good faith, explore all avenues to negotiate a settlement of the dispute.

17.5 Notwithstanding any other provision in this license, if any dispute arises concerning the use of any copyright design or our Intellectual Property, we may at our option disconnect you from the service without notice to you and we shall not be obliged to restore your connection until the issue has been resolved to our satisfaction.

17.6 Nothing in this clause shall prevent your or our seeking urgent equitable or other relief before an appropriate court.

17.7 This License shall be construed and enforced in accordance with the laws of Victoria, Australia.

18. Notices

18.1 Notices and other communications required to be given under this License may be delivered by email, hand or by registered mail to the party for whom they are intended at the last known address of that party.

18.2 Notices will be deemed to be received:

• in the case of hand delivery, upon written acknowledgment of receipt by any officer or other duly authorized employee, or representative of the receiving party;
• in the case of email, 24 hours from the time it was sent
• in the case of posting, when in the ordinary course it would be received.

18.3 Your address and contact details are as you have shown it in the information you have supplied on our website when completing this license. You must advise us of any changes in any part of your address or contact details.

18.4 Our contact details are

Appendix – Definitions

Domain Store(s) means a person(s) who has entered into a Domain Clients Agreement with you as authorized by this license

Domain Store's Agreement means an agreement in the form included in Merchi entered into by you and a Domain Store authorizing the Domain Store to use Merchi through you

Domain Store Store means a website operated by a Domain Store where his or her customers may use Merchi to design and order products

AUD means Australia Currency: Australian Dollars

Catalogue(s) means the data, information and IP provided as catalogues of the stock of various suppliers accessible through Merchi to enable ordering for application thereto of printed, embroidered and otherwise visualized and non-visualized items

Confidential information includes, but is not limited to, any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of each of the parties, and includes, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information, customer information, personal data, in each case whether disclosed verbally, or in written, graphic or electronic form, or any other form or medium, which is either explicitly marked or noted at the time of disclosure as confidential or which a reasonable party would deem to be non-public information and confidential, which may be exchanged between the parties in pursuance of the purpose or otherwise.

Copyright License means the grant of license to you by us authorizing you to use certain materials made available through Merchi

Copyright means the exclusive proprietary right of an author of an original work for a certain time period in relation to that work, including its publication, distribution and adaptation

Customer means anyone who purchases any item from you or your Domain Store

Data is information collected by Merchi Pty Ltd in the operation of the Merchi.

Date of Acceptance is the date you agree to the terms and conditions of this license by clicking the "CONTINUE or SUBMIT" button on the Website or the selling partner's website to complete the online sign-up process

Day of Acceptance is the same numerical day in a month as the initial Date of Acceptance.

Merchi Services are the supplementary or additional services available from time to time that are additional to Merchi.

Merchi Libraries means the collections of images and designs made available under license to us by their respective copyright owners that are available for your use under the Copyright License.

Supply Centre is your place of business where you conduct the processes of fulfilling your customers orders for goods that they have ordered, purchased, or requested through your website, or a Domain Store Store.

Intellectual Property Rights (and IP) means all industrial, commercial and intellectual property rights (including equivalent, neighbouring or proximate rights anywhere in the world that currently exist or are recognized in the future)

License means this license to use Merchi

Order(s) means a valid purchase order submitted by a customer via your website or your Domain Store's for products and/or services

Options means the various functionalities in the "sign-up" page of our website that may be selected in a plan

Our Website means https://merchi.co

Personal Data means data collected by Merchi or licensees or Domain Clients of licensees using the Merchi service and is bound by the privacy statement.

Plan means a plan for use of Merchi and further described in the Pricing Terms

Pricing Terms means the charges which apply from time to time for plans and Merchi services described under that heading on our website for usage of licensed services that are charged by us and payable by you.

Privacy Statement means the Privacy statement that is shown on themerchi.co/privacy site.

Review Date means the anniversary of the Date of Acceptance or the anniversary of the previous Review Date.

Selling partner means an entity authorised by us to offer licenses to use Merchi through the selling partners own website.

Subscription Fee means the fee paid to us by you for your continued right to use Merchi under this License.

Term means the term of this License.

Third Party means any entity other than you or us.

We, our or us mean Merchi Pty Ltd ABN and its successors.

You and your mean the entity to whom this license is granted (including corporations) and his, her or its successors and permitted assign.

Your credit facility means the bank account, credit card or PayPal account referred to in clause 4.2.