These terms of service (“Terms of Service” or “TOS”) form a contract between you (referred to herein as “Customer”, “you”, “your” or “Merchant”) and Merchblock, Inc. (“Merchblock”) that governs your access and use of the Merchblock Services (as defined below in Section 1B). By using any of the Merchblock Services, you agree to be bound by these Terms of Service. If you are using the Merchblock Services on behalf of an organization, you are agreeing to these Terms of Service for that organization and representing to Merchblock that you have the authority to bind that organization to these Terms of Service (in which event, “you” or “Merchant” will refer to the organization). You may use the Merchblock Services only in compliance with these Terms of Service and only if you have the power and right to form a contract with Merchblock.
A. Accounts. In order to create an account with Merchblock, you will provide Merchblock with identifying information, a password, company information and information about your products (“Registration Information”). You agree that you will provide accurate Registration Information and will promptly update such Registration Information as necessary, but in no event later than 30 days after any applicable change. Upon Merchblock acceptance of your request to register for an account (“Account”), you will be sent validation and activation instructions. Access to, and use of, the Account is restricted to authorized users only. You agree not to share your password(s), Account information, or Account access information. You are responsible for maintaining the confidentiality of password(s) and Account information, and you are responsible for all activities that occur under your password(s) or Account(s) or as a result of your access to the Account(s). You agree to notify Merchblock immediately of any unauthorized use of your Account. Merchblock shall not be liable for any unauthorized use of your Account. Through your Account you can select Merchblock Services. For purposes of these Terms, “Good Standing” means that you are not in breach of these Terms or Policies.
B. Merchblock Services. Subject to your compliance with these Terms and the Policies (as defined below in Section 1(c)), Merchblock shall perform the Merchblock Services as selected and authorized by you in your Account. For purposes of these Terms, “Merchblock Services” means the Merchblock products and services and any other features, software, technologies and/or functionalities offered by Merchblock and ordered by you through your Account. You may order Merchblock Services through your Account (“Merchblock Services Orders”). All Merchblock Services Orders are deemed incorporated into, and governed by, these Terms. By using the Merchblock Services, you acknowledge and agree that Merchblock is a product manufacturing service provider, and may act as a broker of third-party manufacturing and shipping services. Merchblock is an independent contractor for all purposes. Merchblock acts as your agent only with respect to the custody of your merchandise (hereinafter referred to as “Inventory”).
A. Account Balances. Merchblock may set a minimum balance that you must maintain on your Account (“Minimum”). Merchblock reserves the right to increase or to decrease the Minimum on your Account immediately upon notice to you. Your Merchblock Account must be funded at or above the Minimum in order to receive Merchblock Services. The funds that you maintain in your Merchblock Account constitute your “Account Balance”. As Merchblock Services charges are incurred, Merchblock will deduct these from your Account Balance. Merchblock reserves the right to request deposits to receive Inventory to cover costs such as receiving costs and enforce minimum Account Balances. If your Account is closed for any reason, Merchblock reserves the right to hold the Minimum Balance for up to 180 Days. Inventory purchase orders will be governed by the terms of a separate purchase and supply agreement between Merchblock and Merchant.
B. Usage Fees. “Usage Fees” are the fees for any Merchblock Services and any third-party fees (including, but not limited to shipping fees, rates of duty, international brokerage charges, freight charges, inventory storage fees, insurance premiums or other charges given during your use of Merchblock Services) ordered through your Account and any special or additional fees assessed against your Account as permitted in these Terms or the Policies. Note that the Usage Fees for Merchblock Services are billed to the month in which the Merchblock Services are performed. Usage Fees are subject to change. If you are on a billing plan, should you change plans during or at the end of any month, your previous pricing plan may no longer be available.
C. Estimates. Quotations for Merchblock Services and Usage Fees are for informational purposes only and are subject to change without notice and shall not under any circumstances be binding upon Merchblock. Quotations accepted through Merchblock Services’ online interface are estimates based on the information available at the time made. The final rates and service fees may vary based upon the goods actually tendered, the work actually performed, or a number of factors such as the actual characteristics of your product, services requested during the normal course of production, and carrier shipping charges. Merchblock reserves the right to bill the Usage Fees based on actual charges at any time after the Merchblock Services are rendered. Merchblock specifically disclaims liability for any shipping rate errors due to inaccurate or incomplete information, such as dimensions and weights.
D. Currency Fluctuations. Merchblock reserves the right to adjust its pricing in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes.
E. Usage Fee Disputes. Should you disagree with any Usage Fees (other than carrier or third-party fees) charged against your Account, you must submit the dispute to Merchblock within 90 days of the fee being charged (“Dispute Period”). Merchblock will not review Customer requests for Usage Fee adjustments that are received after the Dispute Period. The dispute timing allowed for third-party fees and carrier fees shall be set by the applicable third-party or carrier and such time period may be substantially shorter than the Merchblock Dispute Period. If you have a dispute with a third-party fee or carrier fee, please contact Merchblock immediately.
F. Account Balance Disputes. If Merchblock becomes aware of, or is notified of, a dispute relating to your Account Balance, then Merchblock will promptly review the dispute. Within 5 business days after the resolution of the dispute, Merchblock will credit or debit your Account Balance accordingly, if appropriate. Merchblock will not review Customer requests for Account Balance adjustments that are received more than 90 days after the amount in dispute is posted to your Account Balance.
G. Abandoned Account and Liquidation. If your Usage Fees remain unpaid for a period greater than 30 days, then Merchblock reserves the right, at its sole discretion to reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, all rights to ownership of the Account Balance and Inventory would then immediately be forfeited by you. Inventory will become immediately and irrevocably unavailable to you, and credit collection and/or liquidation proceedings would begin. You agree the Inventory would be free and clear of liability, and that you would assume any liability therefore. You would have no rights to the liquidation proceeds. You would also remain liable for any pending Usage Fees above and beyond the liquidation proceeds.
H. Taxes. You acknowledge and agree that all fees, charges and any other rates or amounts charged by Merchblock to you hereunder are exclusive of applicable value added, sales/use or Inventory and service taxes (“Transaction Taxes”) which may be levied in connection with the supply by Merchblock of the Merchblock Services to you. Where applicable, you shall pay all Transaction Taxes arising in respect of the Usage Fees or other amounts charged by Merchblock to you.
I. Currency. All dollar amounts stated in these Terms and the Policy’s will be in US dollars unless otherwise specified.
A. License Grant. If you are using Merchblock software such as an application programing interface (API), developer’s toolkit or other software application (such as, but not limited to, a production management module developed by Merchblock) (“Developer Tools”), then Merchblock grants you a revocable, non-exclusive, non-transferable license to use Developer Tools in accordance with the documentation for your internal business purposes only. You may not rent, lease or otherwise transfer your rights in the Developer Tools to any third party. Merchblock provides the Developer Tools solely on an “AS IS” basis and disclaims all warranties and liability for your use of the Developer Tools. Merchblock may change or discontinue any Developer Tools in its reasonable discretion.
B. Third Party Software. Any third party software application you use on the Merchblock website, to connect to Merchblock Services, or related to the Merchblock Services (“Third Party Software”) is solely subject to any third party software provider software licenses. Merchblock does not own, control or have any responsibility or liability for any Third Party Software.
A. Merchblock Property. For purposes of this Agreement, “Merchblock Property” shall mean (a) Merchblock’s methodology for the provision of Merchblock Services; (b) the Developer Tools; and (c) Merchblock’s ideas, web site, processes, code, technology, software, copyrights, logos, domain names, patents, trade secrets, trademarks, products and materials. Merchblock hereby retains all worldwide right, title and interest in and to the Merchblock Property. Any rights not expressly granted herein to the Merchblock Property shall be retained by Merchblock. You acknowledge that all right, title and interest to the Merchblock Property is owned by Merchblock.
B. Additional Restrictions. Other than as permitted herein, you shall not (and you shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Merchblock Property, or otherwise to attempt to discern the functioning or operation of the website or Merchblock Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any or the rights that you receive hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Merchblock and you shall not copy, imitate, or use them without our express prior written consent. You may use HTML logos provided by Merchblock through our merchant services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to Merchblock.com. You shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Merchblock or the Merchblock Service, or display them in any manner that implies Merchblock’s sponsorship or endorsement. You shall not (and you shall not permit others to): (i) use any robot, spider, scraper or other automated means to access the Merchblock website or Merchblock Services for any purpose without Merchblock’s express written permission, (ii) interfere or attempt to interfere with the proper working of our website or any activities conducted on the website, or (iii) bypass any measures Merchblock may use to prevent or restrict access to the Merchblock website or the Merchblock Services.
C. Client Property. No Confidential Information obtained by Merchblock from you shall become Merchblock Property. All materials provided by you under any Merchblock Services Orders shall be deemed “Client Property” for purposes of the Agreement. You grant to Merchblock a non-exclusive license to the Client Property solely as needed to provide the Merchblock Services. No other licenses express or implied, under any intellectual property rights are granted by you to Merchblock under these Terms.
D. Data Security and Privacy. The Service is currently provided from the United States. Registration Information, Account Data, information, Personal Data, and other data (“Data”) is currently stored and processed in the United States. Merchblock has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Data. These measures include encryption of Data during transmission to the Merchblock Service and encryption of backups of Data and authentication credentials at rest. Merchblock will use reasonable efforts to promptly notify Account owner of any unauthorized access to, or use of, Data that comes to Merchblock’s attention. You must immediately notify Merchblock of any suspected security breach at Merchblock customer support (https://merchblock.com/contact/). For purposes of Processing Personal Data originating from the European Economic Area, Merchblock agrees to incorporate a Data Processing Agreement, whereby Customer is the deemed the Data Controller and Merchblock is the Data Processor.
A. Definition. Each party (“Recipient”) acknowledges that it may receive Confidential Information as defined herein. For purposes of these Terms and subject to the Exclusions set forth below, Confidential Information means any information provided to it by the other party (“Discloser”) that is marked, labeled or otherwise designated as confidential or proprietary, or that Recipient knew, or should have known, was confidential due to the circumstances surrounding the disclosure.
B. Exclusion. Information that is subject to one of the exclusions below shall not be Confidential Information. The exclusions include the following: (a) Non-transactional Confidential Information (as defined below), (b) information publicly known at the time of disclosure, (c) information received by Recipient without restriction from a third party, (d) information published or otherwise made known to the public by Discloser, (e) information that was generated independently without reference to the Discloser’s Confidential Information, or (f) information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
C. Non-transactional Confidential Information. Other than transaction information absolutely required for Merchblock to provide, or for you to use the Merchblock Services, Merchblock does not require nor desire any of your proprietary information (“Non-transactional Confidential Information”). You agree not to provide Merchblock with any Non-transactional Confidential Information, including, but not limited to, conceptual designs and prototypes of new products, without Merchblock’s express prior written consent. In the event that you send such Non-transactional Confidential Information to Merchblock without Merchblock’s prior written consent, then Merchblock shall not be obligated to treat such information as Confidential Information.
D. Standard of Care. Recipient shall not use the Confidential Information for any purpose other than as required by these Terms. Recipient shall not disclose the Confidential Information to any third party, other than as required to perform the Merchblock Services. Recipient shall use at least the same standard of care with the Discloser’s Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. Each party acknowledges that breach of this provision would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section.
E. Return or Destruction. Other than transactional information that is retained in the ordinary course of a party’s business, each party shall either promptly return all Confidential Information, or confirm that such Confidential Information has been destroyed promptly after receipt of written request from the other party.
F. Aggregate Use. Subject to the Terms herein, you hereby acknowledge and agree that Merchblock may compile aggregate results from all of, or a selection of your use of the Merchblock Services, provided that Merchblock shall not disclose any information that would individually identify you (“Aggregate Information”). Such Aggregate Information shall be deemed to be Merchblock’s Confidential Information. You also hereby agree that Merchblock may review and use your individual use of the Merchblock Services in order to provide Merchblock Services to you, to evaluate Merchblock’s provision of the Merchblock Services, and to improve Merchblock’s service offerings.
You agree to indemnify and to hold harmless Merchblock, its parent corporation, and their officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of your use of the Merchblock Services and/or your violation of the Terms or the Policies. Whether Merchblock accepts or refuses product sourcing and production projects, you agree to indemnify and hold harmless Merchblock from any and all claims for manufacturing, transportation, storage, handling and other charges relating to such Inventory, including undercharges, rail demurrage, truck/intermodal detention and other charges of any nature.
A. AS IS. WHILE, MERCHBLOCK WILL ENDEAVOR TO PROVIDE THE MERCHBLOCK SERVICES IN ACCORDANCE WITH THESE TERMS, THE MERCHBLOCK SERVICES AND THE MERCHBLOCK WEB SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MERCHBLOCK AND MERCHBLOCK’S SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE MERCHBLOCK SERVICES, THE MERCHBLOCK WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF THE MERCHBLOCK SERVICES, MERCHBLOCK WEB SITE, OR THIRD PARTY SERVICES IS AT YOUR OWN RISK.
B. Inventory Disclaimer. Merchblock is not the importer of record for Inventory supplied by Merchblock. Merchblock shall not be held liable for complying with your instructions through the Merchblock Services. You understand that Merchblock does not inspect your compliance with applicable regulations nor does Merchblock take responsibility for the business decisions that you make and implement through the Merchblock Services. For example, Merchblock cannot control or ensure that a buyer or seller with whom you do business will remit payment for Inventory in accordance with your agreement with them. For purposes of clarity, Merchblock is not the Merchant of Record for any of your Inventory. Merchblock is not responsible for items damaged during the delivery or fulfilment process or for breakage of items during transit that have been shipped by Merchblock.
C. No Continuous Access. Merchblock does not guarantee continuous, uninterrupted or secure access to the Merchblock Service. Operation of the Merchblock Services may be interfered with by numerous factors outside of our control. Merchblock will make reasonable efforts to process requests for producing or shipping merchandise in a timely manner but Merchblock makes no representations or warranties regarding the amount of time needed to complete processing because our Service is dependent upon many factors outside of our control, such as delays caused by third parties.
A. Third Party Liability. By using the Merchblock Services, you acknowledge and agree that Merchblock disclaims all liability for the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Merchblock.
B. Waiver of Consequential Damages and Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM EITHER PARTY’S ACCESS TO, OR USE OF, THE SITE, ANY CONTENT, OR ANY THIRD PARTY SITES AND CONTENT. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL MERCHBLOCK’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY YOU TO MERCHBLOCK FOR THE APPLICABLE MERCHBLOCK SERVICES EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES (“DAMAGES CAP”). IN THE EVENT OF AN UNAUTHORIZED TRANSACTION BY AN MERCHBLOCK EMPLOYEE OR AGENT, MERCHBLOCK IS ONLY LIABLE FOR THE DAMAGES CAP. MERCHBLOCK MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR YOU WAIVE ALL DAMAGES FROM MERCHBLOCK.
C. Exclusive Remedy. MERCHBLOCK’S LIABILITY REFERRED TO BELOW SHALL BE YOUR EXCLUSIVE REMEDY AGAINST MERCHBLOCK FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS YOU PROVE BY AFFIRMATIVE EVIDENCE THAT MERCHBLOCK CONVERTED THE INVENTORY TO ITS OWN USE. YOU WAIVE ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
D. Damage or Loss of Inventory. INVENTORY INSURANCE IS AVAILABLE. IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION OF INVENTORY (“INVENTORY LOSS”) FOR WHICH MERCHBLOCK IS LEGALLY LIABLE, YOU DECLARE THAT MERCHBLOCK’S LIABILITY SHALL BE LIMITED $1.00 PER KILOGRAM FOR SAID LOST, DAMAGED, AND/OR DESTROYED INVENTORY. PROVIDED, HOWEVER THAT WITHIN A REASONABLE TIME AFTER INVENTORY IS RECEIVED, YOU MUST ADD INVENTORY INSURANCE ON PART OR ALL OF THE INVENTORY IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE; FURTHER PROVIDED THAT NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE INVENTORY HAS OCCURRED. IN NO EVENT SHALL MERCHBLOCK BE LIABLE FOR ANY LOST SALES REVENUE FROM INVENTORY LOSS. MERCHBLOCK’S MAXIMUM LIABILITY FOR INVENTORY LOSS WILL BE CAPPED AT 5% OF THE TOTAL PRODUCT VALUE (“INVENTORY DAMAGES CAP”). FOR GREATER COVERAGE, YOU MUST ADD INVENTORY INSURANCE IN YOUR ACCOUNT SETTINGS ON THE INVENTORY THAT YOU WISH COVERED BY INSURANCE, IN WHICH CASE AN INCREASED CHARGE WILL BE MADE BASED UPON SUCH INCREASED COVERAGE; FURTHER PROVIDED THAT NO SUCH COVERAGE SHALL BE VALID UNLESS PAID FOR BEFORE LOSS, DAMAGE OR DESTRUCTION TO ANY PORTION OF THE INVENTORY HAS OCCURRED.
E. Inventory Count Inaccuracies. IN THE EVENT OF INVENTORY LOSS IN EXCESS OF THE ANNUAL INVENTORY SHRINKAGE ALLOWANCE DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING DISPATCH OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT MERCHBLOCK IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND MERCHBLOCK IS HELD LEGALLY LIABLE, YOU AGREE THAT IT WILL BE CONSIDERED AN “INVENTORY LOSS” AND MERCHBLOCK’S LIABILITY SHALL BE LIMITED AS STATED IN 8.D. ABOVE. IN NO EVENT SHALL MERCHBLOCK BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES.
F. Projects. IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“PROJECT”), YOU DECLARE THAT MERCHBLOCK’S LIABILITY SHALL BE LIMITED TO THE HOURLY CHARGE YOU PAID TO MERCHBLOCK FOR THE PROJECT.
A. Held Accounts. A held Account will be inaccessible to you, and all activity will be suspended. Merchblock reserves the right to place an Account on hold for a number reasons, including but not limited to the following:
B. Immediate termination. Immediate termination is where we immediately close your Account and ship remaining Inventory to the billing address listed in your Account, at your expense. If no address is available, we will liquidate your Inventory (See Abandoned Account and Liquidation for more information). Merchblock reserves the right to immediately terminate an Account for a number reasons including but not limited to the following:
C. Termination with 30 days notice. Merchblock reserves the right to terminate an Account for any reason upon 30 days notice (“Termination Notice Period”) which Merchblock shall send to you via email. It is your responsibility to make sure Merchblock has a working email for you. You may have full or limited use of your Account during the Termination Notice Period in our discretion, with the intention of allowing you to ship existing inventory back to you. Any Inventory that remains in Inventory at the expiration of the Termination Notice Period will be shipped to the address on file and, if address is not on file, the billing address on your credit card, at your expense. If no address is available or no balance is available to pay for shipment back to you, we will liquidate your remaining Inventory. (See Abandoned Account and Liquidation Policy for more information.)
D. Payment for Services prior to Inventory Removal. Prior to Merchant removing all Inventory following termination and as stated herein, Merchant shall pay Merchblock i) all current amounts outstanding for produced goods and Service fees, transportation, storage and other fees and ii) a good faith estimate of amounts that will become due for transportation, storage and Service and other fees that will be incurred prior to the termination date.
E. Additional Actions. If you violate the Policies or these Terms, we may close, put on hold, or limit access to your Account or the Merchblock Services as set forth above. Without limiting any of remedies under law or equity, we may also take any actions we deem necessary or advisable, including, without limitation, any of the following actions:
Please note, while disagreements sometimes arise, Merchblock wants to address any complaint with the Merchblock Service in a proactive manner. Please log a support case for resolution, you can send an e-mail at https://merchblock.com/contact/. For purposes of clarity, this does not waive the notice requirement set forth below.
A. Merchant Protection is Available. Merchblock strongly urges you to appreciate that errors happen with production, storage and shipping, and that the best defense is protecting yourself ahead of time. Merchblock offers multiple merchant protection services that can be taken advantage of anytime. Please note these services may not be applied retroactively, and are thus best used at the time of Account setup.
B. Mandatory Mediation and Arbitration of Disputes. Except for disputes relating to payment for Merchblock Services or as otherwise expressly provided in these Terms, all disputes arising under these Terms, any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, or otherwise from your use of or access to the website or Services, shall be determined by arbitration in the city of Toronto, Ontario (using the English language), before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures then in effect or such other rules as may be stipulated to by the parties. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.
Prior to the appointment of the arbitrator, and within 10 days from the date of commencement of the arbitration, the parties shall submit the dispute to JAMS for mediation. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in promptly scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. The mediation may continue, if the parties so agree, after the appointment of the arbitrators. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The pendency of a mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending.
These Terms and performance by the parties hereunder shall be construed in accordance with the applicable laws of the Province of Ontario without regard to conflicts of law provisions thereof, or, as appropriate the federal laws. Any action or proceeding arising from or relating to these Terms must be brought in a federal or provincial court in Toronto, Ontario. You and Merchblock consent to the exclusive jurisdiction of, and venue in, the provincial and federal courts within Toronto, Ontario. Notwithstanding the foregoing, Merchblock may seek injunctive or other equitable relief to protect Merchblock’s intellectual property rights in any court of competent jurisdiction.
A. Severability. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of these Terms shall remain in effect and enforceable in accordance with their terms.
B. No Waiver. Failure or delay of Merchblock to exercise a right or power under these Terms shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
C. Notices to You. You agree that Merchblock may provide notice to you by posting it on our website, emailing it to the email address listed in your Account, or mailing it to the street address listed in your Account. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to the email address listed in your Account. If the notice is sent by mail, we will consider it to have been received by you five Business Days after it is sent. Merchblock reserves the right to terminate your Account if you withdraw your consent to receive electronic communications.
D. Notices to Merchblock. Except as otherwise stated, legal notices to Merchblock must be sent by postal mail to: Merchblock Inc., Attention: Legal Department, 21 Bradwick Dr, Unit 14, Concord, Ontario, Canada, L4K 1K6, and shall not be deemed to be received until actually received.
E. Assignment. You may not transfer or assign any rights or obligations you have under this Agreement without Merchblock’s prior written consent and any attempted assignment without that consent will be void. Merchblock reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time. Subject to the foregoing provisions of this Section, these Terms shall be binding on and inure to the benefit of the parties’ successors and assigns.
F. Conflict of Terms. If there is a conflict between these Terms and the terms on any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier’s terms will control. If not stated within the carrier’s terms, the Terms as stated herein shall control.
G. Entire Agreement and Modifications to Terms and Policies. These Terms and the Policies are the entire statement of the terms that govern your use of the Merchblock Services and the Merchblock Website. MERCHBLOCK MAY MAKE CHANGES TO THESE TERMS AND/OR THE POLICIES FROM TIME TO TIME IN MERCHBLOCK’S SOLE DISCRETION. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE MERCHBLOCK SERVICES OR THE MERCHBLOCK WEB SITE AFTER MERCHBLOCK POSTS OR OTHERWISE MAKES AVAILABLE MODIFIED TERMS AND/OR POLICIES WILL CONSTITUTE YOUR ACCEPTANCE OF THOSE MODIFIED TERMS AND POLICIES. Merchblock will endeavor to provide you with notice of any changes to these Terms or the Policies, but Merchblock’s failure to do so shall not excuse your obligation to comply with such modified Terms and Policies.
H. Attorneys’ Fees and Costs. Merchblock shall have the right to collect from you its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing these Terms.
I. Force Majeure. Merchblock shall not be liable for any delays or inability to perform the Merchblock Services caused by forces beyond Merchblock’s control including, without limitation, acts of God or acts of third party service providers including but not limited to contractors, carriers and postage systems. When Inventory is ordered for production, in the case of acts of God, war, terrorism, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, or any reason beyond Merchblock’s control, or because of loss or destruction of Inventory for which Merchblock is not liable, or because of any other excuse provided by law, Merchblock shall not be liable for failure to carry out such instructions and Inventory remaining in storage will continue to be subject to regular storage charges. If Merchblock has exercised reasonable care and is unable, due to causes beyond its control, to affect delivery before expiration of the current storage period, the Inventory will be subject to storage charges for each succeeding storage period.