TERMS AND CONDITIONS
Last Updated:October 13, 2018
Thanks for using the ShopTheirPersonality.com website by Mercartto Inc. (“Mercartto”, “we”, “us”), a platform which provides an online service to allow users to find, price, and purchase creative works and products on a global basis. This document sets forth the terms and conditions that apply to our use of the Site (as defined below). By using or accessing the site and/or the Services (as defined below), whether manually or by automated means, you agree to these Terms (as defined below). If you have any questions or concerns, please do not hesitate to contact us. The Terms are a legally binding contract between you and Mercartto.
The Site provides an interactive online service operated on the World Wide Web of the Internet (the “Web”) and mobile phones offering access to various services and content through the Site (“Content”).
“Services” include, but are not limited to, any service we make available to or perform for you through the Site.
Changes to this Agreement
We reserve the right in our sole discretion to revise and update the Terms from time to time. Any and all such modifications are effective immediately upon posting and apply to all access to and continued use of the Site. You agree to periodically review the Terms in order to be aware of any such modifications and your continued use shall be your acceptance of these.
The Site and the information and material on the Site may be changed, withdrawn, or terminated at any time in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site is restricted to users or unavailable at any time or for any period.
Modifications to the Services
We reserve the right to modify, discontinue, restrict, change the URL of, and block access to the Services and/or the Site without notice to you. We may modify or remove any Products (as defined below) and User Generated Content (as defined below) from the Services and/or Site at any time without notice to you, including the removal of any products or content that we believe to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Occasionally, there may be information on the Site that contains typographical errors, inaccuracies or omissions. We reserve the right, at any time without prior notice, to correct any errors, inaccuracies or omissions, and to change or update information if any such information on the Site is inaccurate. We undertake no obligation to update, amend or clarify information on the Site, except as required by applicable local, provincial, federal or international laws, regulations, or statutes. No specified update or refresh date applied to the Site should be taken to indicate that all information on the Site has been modified or updated.
License. Mercartto grants you a limited, non-exclusive license to access and use the Site for your own personal, non-commercial purposes. This includes the right to view Content available on the Site. This license is personal to you and may not be assigned or sublicensed to anyone else.
Age of Use. You must be 18 years of age or older to use our services. If you are not 18 years of age or older, you are not authorized to use the Site and Services. You are responsible for any and all account activity conducted by a minor on your account. By accessing or using the Site you represent and warrant that you are 18 years of age or older.
Sole Responsibility. You are solely responsible for your interactions with other users of the Site and Services. We reserve the right, but are under no obligation, to monitor disputes between you and other users.
Hardware. You agree that you are responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of this Site and/or Services and all charges related thereto. We shall not be liable for any damages to your or any user’s equipment, or for any data charges resulting from the use of this Site.
Information. You agree not to disclose, when offering Product(s) (as defined below) via the Site or when seeking Product(s) via the Site, personal details such as your full name, street number, phone number or email address in any description of any user or in any public communication on the Site.
Accurate Information; Registration and Passwords; URLs
Accurate Information. In consideration of your use of the Site and Services, you agree to: (a) provide accurate information as prompted on the Site or through the Services; and (b) maintain and update such information to keep it accurate. If you provide any information that is inaccurate, or Mercartto has reasonable grounds to suspect that such information is inaccurate, Mercartto may suspend or terminate your use of the Services and/or the Site and/or decline to permit your continued use of the Site and/or the Services and future access to the Site and/or the Services.
Registration. To access certain parts of the Site or Services, you may be required to open an online account with Mercartto, in which case you will have to create a username and password and to provide registration information, including your first and last name and a valid e-mail address.
You may not use as a username the name of another person or entity that is not lawfully available for use, a name or trade mark that is subject to any rights of another person or entity other than you without appropriate authorization, or a name that is otherwise offensive, vulgar, or obscene.
You may use credentials from, including but not limited to a third-party intermediary such as Facebook (“Login Partner”) to access certain features of the Site and Services. By using credentials from a Login Partner, you agree that you will not: (i) use the credentials of another person with the intent to impersonate that person; or (ii) use credentials subject to the rights of any person without authorization. You are responsible for maintaining the confidentiality of your credentials from the Login Partner and are responsible for all activities (whether by you or by others) that occur under your credentials. You will notify us immediately of any unauthorized use of your password or account or any other breach of security. Mercartto assumes no liability for any loss or damage arising from any unauthorized use of your credentials by a third party.
If you are a business, government, or non-profit entity, the person whose e-mail address is associated with the account at the time of registration must have the authority to bind you to this Agreement.
Security. You are responsible for maintaining the confidentiality of your password and are solely responsible for all activities resulting from the use of your password and conducted through your Mercartto account. You must immediately notify Mercartto upon becoming aware of any unauthorized access or any other security breach to the Site or the Services and do everything possible to mitigate the unauthorized access or security breach (including preserving any evidence and notifying appropriate authorities). You are solely responsible for securing your password. Mercartto will not be liable for any loss or damage arising from unauthorised access of your account resulting from the failure to secure your password.
As a condition to using the Site and/or Services, you promise not to use the Site and/or Services for any purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably foreseen to have been intended by Mercartto, including without limitation:
Mercartto shall have the right, but no obligation, to monitor the content on the Site and/or Services to determine compliance with these Terms and any other operating rules we establish. Mercartto shall have the right in its sole discretion to edit, refuse to post, or remove any material submitted to or posted to the Site or Services. Notwithstanding this right, you shall remain solely responsible for the content of your messages and any User Generated Content (as defined below). Mercartto neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement on the Site and/or Services, whether it is provided by Mercartto, our employees, or a third party.
Under no circumstances will Mercartto be liable for any loss or damage of any kind caused by reliance on information obtained through the Site or Services. Mercartto is not responsible for any offensive, defamatory, obscene, or other posting made through the Site and/or Services. We reserve the right at all times to disclose any information we believe necessary to satisfy any law, regulation, or governmental request, or to refuse to post or to remove any information or materials, in whole or in part, that in Mercartto’s sole discretion is inappropriate, objectionable, or in violation of these Terms.
Any user who feels that Content is objectionable is encouraged to contact us immediately by email to firstname.lastname@example.org. We have the ability to remove objectionable Content and we will make every effort to do so, within a reasonable time frame, if we determine that removal is necessary. This is a manual process, however, so please realize that we may not be able to remove or edit particular messages immediately.
Neither Mercartto nor any third-party content provider shall assume or have any liability for any action or inaction by Mercartto or any third-party content provider with respect to any conduct, communication or posting on the Site and/or Services.
Ownership of User Generated Content
You retain ownership of any content (including any and all Product(s), as defined below) which you submit to the Site or through the Services (“User Generated Content”). However, by submitting your User Generated Content to Mercartto, you hereby grant Mercartto the following worldwide, royalty-free, irrevocable, non-exclusive, sub-licensable and transferable rights and licences:
By submitting User Generated Content for inclusion on the Site or through the Services, you also grant the limited use of and limited rights to your User Generated Content to others: (i) the non-exclusive licence to access your User Generated Content through the Site or Services; (ii) if permitted, the ability for users to rate, review and comment on your User Generated Content; (iii) if permitted, the ability for users to send and distribute your User Generated Content; and (iv) the non-exclusive licence to users to use, reproduce, distribute, remix, prepare derivative works and compilations of, display and perform your User Generated Content as permitted through the functionality of the Site and Services and under these Terms. Notwithstanding the foregoing, however, in no event shall another User or Mercartto have the right to reproduce User Generated Content for the purposes of a commercial sale. Please keep in mind that even if you delete your User Generated Content from the Site or Services, it may still exist in back-up copies or copies made by third parties prior to deletion.
You are solely responsible for ensuring that you comply with your obligations to other users. If you do not, you may become liable to that user. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances, and regulations relevant to you in any uses you make of the Services and/or Site.
If another user breaches any obligation to you, you are solely responsible for enforcing any rights that you may have. For avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract (as defined below).
User’s Representations and Warranties
For each piece of User Generated Content you submit, you represent and warrant that: (i) you have the right to submit the Content to the Site and grant the licenses set forth above; (ii) Mercartto will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the Content does not infringe any third party’s rights, including intellectual property rights and privacy rights; (iv) you shall not assert any moral rights or rights of publicity against us for using your User Generated Content; and (v) the Content complies with this Agreement and all applicable laws.
Identity / Know Your Customer
You authorise us, directly or through third parties, to make any inquiries we consider necessary to validate your identity. You must, at our request: (i) provide further information to us, which may include your date of birth and other information that will allow us to reasonably identify you; (ii) take steps to confirm ownership of your email address or financial instruments; or (iii) verify your information against third party databases or through other sources.
We reserve the right to close, suspend, or limit access to your account, the Site, or the Services in the event that we are unable to obtain or verify to our satisfaction the information which we request under this section.
Sale of Products:
Each Product is individually vetted by Mercartto, after which, if it is accepted by Mercartto, it is catalogued through our “Personality Algorithm”. For clarity, Mercartto is under no obligation whatsoever to accept any Product(s) and Users will be informed in each such case.
For each Product that you submit to us, you agree to provide us the right to offer for sale such piece of Product on our Site (and related application), or with any third-party partnership, as well as through any other media now known or later developed.
Mercartto will identify you as the owner of all rights to the Product, subject to this Agreement, and you agree to allow us to use your name, image and logo (if any), as well as your biographical information and descriptive materials in our advertising, blog, and promotional materials associated with the Product, without limitation. You agree that Mercartto can also distribute images of the Product on any other media now known or later developed to potential purchasers and other Users.
Upon receiving notice from Mercartto that a purchasing user (“Purchaser”) wishes to purchase your Product, you have twenty-four (24) hours to respond to Mercartto if the Product is or is not available. If you do not respond within twenty-four (24) hours, Mercartto will assume the Product is no longer available for sale. Mercartto may remove the Product(s) from the site at Mercartto’s discretion.
It is understood that you control all rights to your Product(s) and copyright is not transferred to the Purchaser of your Product(s).
“Product” or “Products”mean each specific piece of creative work, products and/or service submitted to Mercartto by you for sale on the Site.
Upon selling your Product to a Purchaser, you and the Purchaser will be deemed to have entered into a contract under which the Purchaser agrees to purchase the Product and you agree to sell the Product (a “User Contract”) pursuant to the terms of this Agreement and any other contractual provisions accepted by both you and the Purchaser related to the Product, as applicable, to the extent not inconsistent with this Agreement. While Mercartto may charge fees associated with the Product, you acknowledge that the User Contract is between you and the Purchaser.
You acknowledge that any relationship between you and a Purchaser or another user is that of an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between users.
In the event of a sale of your Product, to following rules shall govern your fees with respect thereto:
Base Price. You set the base price of the Product (the “Base Price”). It is suggested that you account for all your costs, including but not limited to materials, time, and packaging when calculating your price. Additionally, it is suggested that you account for your own tax obligations and potential discounts offered to the Purchaser through Mercartto.
Published Price. It is agreed Mercartto will offer the Product for sale at the Base Price plus an additional percentage as determined by Mercartto (the “Published Price”). The Published Price will include the shipping and handling and insurance charges incurred by Mercartto for the delivery of the Product to the purchaser.
Payment to You. Mercartto will pay you an amount equal to sixty-five percent (65%) of the Base Price (the “Net Payment”). The Base Price shall be exclusive of any sales tax, insurance, shipping and handling charges incurred by Mercartto for the delivery of the Product to the Purchaser, which will either be paid by Mercartto or the purchaser, but not you. In the event that Mercartto enters into a partnership with a third-party sales partner to offer any of your Product for sale, then you will be responsible for one-half of the commission paid by us to such third-party sales partner.
Payment Timing. Mercartto will send payment as soon as practical after the sale of the Product, but no later than the fifteenth (15th) day of the month following the month of the purchase.
Discounts. Mercartto reserves the right to promote and market Products through the use of sales and/or discounts. The sale or discount amount will apply to the entire Published Price. For clarity, if Mercartto, in its sole discretion, elects to apply a discount, the entire Published Price will reduced by such discount percentage (the “Discount Percentage”). As a result, the Base Price will, in turn, be reduced by the Discount Percentage which results in a revised Base Price (the “Revised Base Price”). In connection with the foregoing, your Net Payment will be 65% of the Revised Base Price. By way of example, if Mercartto applies a discount of 20% to a Product with a Published Price of $110.00 and a Base Price of $100.00, the revised Published Price will be $88.00, and the Revised Base Price will be $80.00. As a result, the Net Payment would be revised to 65% of $80.00, being $52.00. In connection with the foregoing, any discount, applied by Mercartto, with respect to any Product shall be capped at a maximum of 20% of the Published Price. For clarity, in no event will Mercartto apply a discount of more than 20% to any Product available on the Site.
Stripe Inc. Mercartto uses Stripe Inc. (“Stripe”) for your payment processing services. By using Stripe payment processing services, you agree to the Stripe Payment Services Agreement available online at the Stripe web site which can be found at (https://stripe.com/ca). Mercartto may, at our discretion, elect to pay your bank account directly via Interac E-Transfer in lieu of payment via Stripe. If you do not opt for electronic payment, you will be responsible for any additional expenses incurred to deliver your payment via non-electronic means (including, but not limited to, wire transfer fees, courier fees.)
Shipping and Packaging for Sales
You agree to package the Product in a manner that will protect the Product against damage while in transit. This includes wrapping the art in suitable padding and ensuring the outer packaging is sturdy enough to withstand shipping to the purchasing user and, should the purchasing user choose, shipping from the purchasing user back to you.
You are responsible for providing accurate shipping weight, shipping dimensions, and shipping address to Mercartto. If actual shipping weight, shipping dimensions, and shipping origination information at the time of shipment varies from the information provided by you, Mercartto (after providing documentation) reserves the right to deduct the resulting increased shipping costs from the Net Payment owing to you.
You agree to ship the Product to the Purchaser via common carrier (such as Canada Post or FedEx) as directed by Mercartto. The carrier directions may require you to take the packaged Product to a designated location (such as a Canada Post or USPS postal outlet or post office, or another designated location). Should you prefer that the carrier pick up the Product from the Product’s location, this shall be at your expense unless otherwise agreed upon by Mercartto. The Product must be shipped within forty-eight (48) hours of receiving shipping information unless otherwise agreed upon by Mercartto. If you do not ship the purchased Product within a timeframe deemed reasonable by Mercartto, then the sale may be cancelled. Mercartto will pay the shipping and packaging charges directly to the common carrier.
In the event of damage in transit, we will file a claim against the common carrier and you agree to assist us.
We will allow a purchasing user the right to return the Product if we are notified within fourteen (14) days of delivery (or as we may extend, but not more than thirty (30) days). You agree to accept the return, it being understood that you will not receive any compensation for the returned Product. Upon return, you agree to promptly inspect the Product and in the event of damage to promptly notify us in writing and retain the Product and all shipping materials, so we may file a claim. We will pay you fifty percent (50%) of any money we receive from any successful claim that we file with the common carrier for the Product. If the Purchaser damages the Product or does not properly package the Product, we will pay you for the damaged Product to the extent that Mercartto recovers from the purchasing user.
Rules Governing Seller and Sales of Product(s)
Any action by a seller to avoid the payment structure herein outlined is considered avoidance and is strictly prohibited by Mercartto. For clarity, you shall not:
If a Seller updates a Product after it has been posted on the Site or removes the Product from the Site, then all offers for that Product will be automatically rejected and the offer process will restart, as applicable.
Seller’s Representations and Warranties
For each Product that you submit for sale on the Site, you represent and warrant that (i) you have the right to submit the Product to the Site for sale and to complete a sale transaction involving the Product; (ii) Mercartto will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the offer for sale and/or sale of the Product does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) the offer for sale and/or sale of the Product complies with this Agreement and all applicable laws.
Upon you purchasing Product(s) provided by another user of Mercartto (the “Seller”), and the seller’s acceptance or such purchase, you and the Seller will be deemed to have entered into a contract under which the Seller agrees to deliver the Product and you agree to purchase the Product (also a “User Contract”), pursuant to the terms of this Agreement and any other contractual provisions accepted by both you and the Seller, as applicable, to the extent not inconsistent with this Agreement, related to the Product (s). While Mercartto may charge fees associated with the Seller’s Product, you acknowledge that the User Contract is between you and the Seller.
Depending on their jurisdiction, you and a Seller may have rights under statutory warranties that cannot lawfully be excluded. Nothing in this Agreement is intended to override a right that by applicable law may not be excluded.
You acknowledge that any relationship between you and a Seller or another user is that of an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between users.
Rules for Incoming Payment
With respect to any purchase made on or through the Site and/or Services, you agree that:
(i) you will not use an invalid or unauthorised credit or debit card or other payment method; (ii) you are solely responsible for identifying and selecting the product or service you wish to purchase; and (iii) your payment will be charged to the credit or debit card or other payment method you use.
You understand you will be responsible for paying all fees and applicable taxes associated with using the Services. You will be responsible for paying any duty, taxes, or brokerage fees applicable to the purchases that you make usin